P R O C E E D I N G

[In the Superior Court of Gwinnett County, Lawrenceville, Georgia, 9:00 a.m., Thursday August, 24, 1995; the STATE OF GEORGIA v. MICHAEL HAROLD CHAPEL, 93-B-1818-6; Criminal Jury Trial, Judge Fred A. Bishop, Jr., presiding.]

THE COURT: Would you approach the bench, please.

[Counsel approached the bench and the following conference ensued.]

THE COURT: The deputies -- last night, our young guy, Mr. Ford, was -- I don't know whether you'd call it a diary or what which they turned up. And I guess to what extent is that a problem? And obviously, he's taking notes when he gets back to his room, writing down his impressions and what all he's seeing and hearing and transpiring in the courtroom. It appears to be in the form of a diary. And I guess the question is, is there anything objectionable about that or not?

MR. PORTER: I don't think it's objectionable. I don't think -- I think the safest course would be to bring him in and say, 'Mr. Ford, there's no problem with you keeping a diary, but you're not to communicate that to other jurors, you're not to use that in your deliberations.' You know, I think it would be a problem if he brought it into the jury and said, 'look, I've been keeping a diary the whole time.' It falls in the same category as notes.

THE COURT: Well, they all got notes, but I mean, this is after he gets back -- it's, you know --

MS. ROGAN: Yeah.

MR. PORTER: I imagine they're sitting there thinking about it anyway.

MS. ROGAN: Right. I mean, they're instructed not to talk to each other about it, but they can't really not think about it themselves. As long as he's not sharing that information with other people.

THE COURT: Well, I guess, you know, these days with the prospective book writers on juries, I don't know how this ties in with that or --

MR. SMEAL: I wonder where he picked up the idea from?

THE COURT: -- if it makes any difference, you know. I'm sort of --

MR. PORTER: Judge, once this baby's over, anybody who wants to write a book about it can write a book about it.

THE COURT: All right. Well, what do you want me to do about it, if anything?

MS. ROGAN: I might suggest giving it -- I wouldn't even necessarily single him out, but give an instruction that -- just reiterate the instruction that they're not to speak each other about the case until deliberations start or bring any -- now, what's the word -- recorded recollections into their deliberations.

MR. PORTER: Any material other than -- they will not -- they cannot bring any material other than their notes into the deliberations.

MS. ROGAN: Uh-huh.

MR. PORTER: That they're not to use any other source.

THE COURT: What about the diary he's done so far? Do you think it ought to be returned to him or not?

MR. PORTER: I don't think there's any problem with him keeping a diary, Your Honor.

MS. ROGAN: I have a -- do you have a problem with that?

MR. MOORE: I don't. I mean, you know --

MS. ROGAN: As long as it's just kept for his personal use --

MR PORTER: And I don't have any problem with, when it's returned, that he be instructed that's for his personal use and he's not to show it to anybody and that's the condition he gets it back on. Have the bailiffs instruct him that.

THE COURT: Anybody have any objection to that?

MS. ROGAN: Do you want him spoken to directly?

MR. MOORE: What do you think?

MS. ROGAN: Well, I'm sort of two minds. Of course, I don't want to embarrass him, but on the other hand, I guess --

MR. PORTER: Well, that's why I suggested --

MS. ROGAN: -- it would be better to get the message directly to him, but --

MR. PORTER: -- when the bailiff hands it back to him and says, 'The judge says this is fine, but you're only to use it and you're not to share it.'

THE COURT: You're just suggesting don't tell him anything in the courtroom?

MR. PORTER: Unless you want to give a general instruction of 'you're allowed to keep notes and those notes are the only thing that you'll be able to take -- and notes and the evidence are the only thing that will go back in the jury room. You're not to use any other source, any other material.'

THE COURT: Yeah. Well, who knows what we'll have, you know. He's nineteen. The girl's eighteen.

MR. MOORE: I was going to say, it occurred to me that when deliberations start if they last more than one day, if he goes back and consults his diary and then comes back the next morning and says, I checked my diary last night, and --

MS. ROGAN: But they're going to have their notes with them anyway.

MR. PORTER: I mean, they're going to be looking at their notes.

MR. MOORE: Uh-huh.

MS. ROGAN: He is also the fourth alternate.

THE COURT: Third now.

MS. ROGAN: Third.

MR. MOORE: Oh, did we lose someone?

MS. ROGAN: Oh, no. Yeah, we moved him up to --

MR. MOORE: Oh, okay. I was going to say, did I miss something somewhere?

MS. ROGAN: Even at third, he's really unlikely to be involved in deliberations.

THE COURT: I think that's probably true, which brings us to another question. I'll just toss it out. Once we get -- assuming we get a guilty verdict and assuming then we move into the sentencing stage, and all that's not done in a day, so we'd have to now sequester the jury overnight with an unfinished sentencing stage. Now we've got these alternates, and it would seem to me the alternates don't go with the twelve anymore, and the question is, if we keep any of them, what if you lose one of them while you've got a day or two or three or whatever of the sentencing stage going on.

It seems to me there ought to be an alternate, at least one alternate retained just in case, for the sentencing phase if we're in that. What do you do with that other alternate? That other alternate's got to be -- our alternates have to be sequestered, and would they have to be sequestered separately or can they stay together?

MS. ROGAN: The other problem is that the alternates won't have participated in the deliberations.

THE COURT: I know, but they may have started their own deliberation if they're together.

MS. ROGAN: Uh-huh.

THE COURT: So, you know, they've been deliberating with the alternates, and then one of them goes in with the other twelve and starts deliberating with them.

MS. ROGAN: Uh-huh.

THE COURT: I don't know. That's something you might just want to think about.

MS. ROGAN: I don't know.

MR. PORTER: I don't know -- if we lost a juror in the middle of the penalty phase, I don't know what the effect would be. Do you have to go back and start all over again with the guilt-innocence?

THE COURT: I think if we got -- well, I guess my inclination would be as long as we've got alternates or at least one alternate, and they hear everything in the courtroom -- they just don't continue deliberations. They've heard all of the evidence and all the law and -- I mean, what if you come back and recharge with an alternate. You bring the alternate back, and they hear the recharge.

MR. PORTER: I've never really thought about it, to tell you the truth.

THE COURT: Well, we might want to -- that's something we may have to address.

MS. ROGAN: Yeah. I don't recall that ever happening, so there must be some rule.

MR. MOORE: I've certainly never encountered it, so --

THE COURT: Well, I just wanted -- at this point, I don't want to get into -- if there's a sentencing stage, if it goes that far, and then have a juror die on us or somebody get sick or something like that --

MS. ROGAN: Uh-huh.

THE COURT: -- and then say, well, now we've got eleven and we're in the middle of the sentencing stage.

MR. PORTER: I guess that the alternate would have to be instructed that the only issue that they -- that the issue of guilt or innocence has been decided --

MS. ROGAN: Right.

MR. PORTER: -- and that the only issue that we would decide on is punishment --

MR. SMEAL: I was going to mention, what happens if the alternate in sentencing would not have found him guilty in the guilt-innocence phase.

MS. ROGAN: Uh-huh.

THE COURT: I think that's resolved.

MR. PORTER: You'd have to say it's done.

THE COURT: No consulting opinions on that one. Okay. All right. You need a minute to do what?

MR. PORTER: Just a second, Your Honor. I just want to do a sound check and then I'll wheel it out of the way.

THE COURT: Okay. All right. Well, I think what I'll do is I'll just tell them, you know, anybody -- they're allowed to take notes here and those will be secured. Any other notes anybody takes with respect to the trial, should anybody take any other notes with respect to the trial, those are not to be used in the jury -- that no other matters are to be used in any jury room and not to be used as part of the material used for the deliberation or --

MR. PORTER: Or shared with other jurors.

THE COURT: -- or shared with other jurors. Does that satisfy everybody?

MS. ROGAN: It satisfies me.

MR. MOORE: I'm satisfied.

THE COURT: I think I'm going to keep his notes. I think maybe that'll send him a message.

MS. ROGAN: Okay.

THE COURT: Maybe that will help put a damper on it.

MS. ROGAN: Yeah. That's probably a good idea.

THE COURT: Okay. All right. How long do you need, Mr. Porter?

MR. PORTER: Five seconds, Your Honor.

THE COURT: What do we have coming first?

MR. PORTER: The 9-11 -- the radio operators on the 9-1-1 call from the original theft, and then moving through the theft into the police officers at the precinct.

THE COURT: Okay. All right. Everybody ready?

MR. PORTER: And then the hearsay will follow after that.

THE COURT: Okay.

MR. PORTER: And then this afternoon, we expect to be putting up post-murder financial information. [To Ms. Rogan] The car wash and the T-shirts.

MS. ROGAN: Oh, okay. I thought you meant bank stuff.

THE COURT: Have you got anybody coming to testify about the bills -- that you mentioned in opening statements -- is there anything else coming in with that?

MR. PORTER: Yes, sir. There will be evidence. I'm not sure --

THE COURT: Is that going to be today?

MR. PORTER: I don't know if that will be today.

THE COURT: Oh, okay. It may or may not be today. Okay.

MR. PORTER: Yeah.

MR. SMEAL: It could be this afternoon.

THE COURT: Okay. All right.

MR. PORTER: Johnny, your expert's still coming today at one to look at the bills?

MR. MOORE: Yeah.

MS. ROGAN: Uh-huh.

THE COURT: Okay.

MR. MOORE: And I hadn't had a chance -- I didn't bring that up pre-trial, but those bills were found at the last minute. We've got an expert, Judge, at $75 an hour, it's probably only going to take him an hour or two to look at them and so --

THE COURT: That's fine. That'll be fine. I imagine where we are at this point, that's nothing.

MR. PORTER: A drop in the bucket.

MR. MOORE: That's why I wasn't going to be concerned with it.

MR. PORTER: A drop in the bucket.

THE COURT: You just want to pause a moment?

MR. PORTER: Just pause.

MR. MOORE: He's just going to examine them.

[Bench conference concluded.]

[Pause in proceedings]

THE COURT: Just make it known when you're ready, Mr. Porter.

MR. PORTER: The state's ready, Your Honor.

THE COURT: Is the defendant ready?

MS. ROGAN: Yes, sir.

THE COURT: Bring the jury back, please.

[The jurors were escorted to the courtroom.]

THE COURT: Good morning, ladies and gentlemen. Is everybody doing okay this morning? Good. Everybody find their pens, pads? If you need any other pads, make it known. The bailiffs will provide what you need.

And in that regard, let me suggest to you and direct you that everybody is authorized to keep whatever notes you want during the course of the trial of the case; and, of course, those will be secured, as I said at the commencement of the trial, and those will all be destroyed at that time.

And if there's anybody else who keeps, during the course of the evenings, any diaries or those kinds of things, let me suggest to you that those are probably best not be kept, but if they are those matters ought to be left out of the trial of the case. They ought not to be referred to or used in any way during the course of the trial of the case and ought not to be in any way provided, discussed, alluded to, or used in any way with the trial of the case or shared with the other jurors. And that will be the instruction of the Court.

Call your first witness, please.

MR. PORTER: The state would call Lenora Taylor to the stand.

[The witness was called to the courtroom.]

MR. PORTER: Ms. Taylor, would you take the witness stand, please.

[The witness stepped to the stand.]

MR. PORTER: Could you raise your right hand, please. Do you solemnly swear the testimony you're about to give in this matter now pending shall be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS: Yes.

Whereupon,

LENORA JAQUILLA TAYLOR

having been called as a witness and duly sworn, was examined and testified, as follows:

DIRECT EXAMINATION

BY MR. PORTER:

Q. You can put your hand down. Could you state your name and spell it for the record, please?

A. Lenora Jaquilla Taylor, L-e-n-o-r-a, J-a-q-u-i-l-l-a, T-a-y-l-o-r.

Q. And how are you employed, Ms. Taylor?

A. I'm employed with the Gwinnett County police department, Communications Division.

Q. And what is your job function?

A. I'm a senior communications officer.

Q. All right. Do you have supervisory duties there?

A. Supervisory duties, yes.

Q. Let me call your attention to April 1993. In your duties as a supervisor, at that time, were you requested to transfer an original 9-1-1 call onto a cassette tape?

A. Yes.

Q. Could you describe for the jury what does the tape machine for the original 9-1-1 calls look like and what size is the tape?

A. The tape machine is a Magnesync audio log-in recorder. It's approximately five foot tall and has reel-to-reel tapes that are used to record radio traffic and phone calls coming in and going out of the communications center.

Q. And is it unusual in the course of your duties as a communication supervisor to record from the reel-to-reel tapes onto cassettes for court purposes?

A. No, it's not unusual.

Q. And have you been requested to do that in the past?

A. Yes.

Q. Could you describe the process by which you created or recorded the cassette tape from the reel-to-reel?

A. I take the reel-to-reel, put it on a Magnesync playback machine that is kept in our office, and I thread the tape, and obtain a new cassette tape, and place it there at the Magnesync, and thread the tape onto the playback. And then I press the play button, make an announcement on the tape, record whatever information I'm going to record from the tape onto the cassette, and make another announcement, and then end the cassette, stop the play back, and then play the tape back to make sure that it's recorded.

Q. All right. In April 1993, in regard to a 9-1-1 call that was received on April 3, 1993, did you go through the process that you've just described in creating a cassette tape from the reel-to-reel?

A. Yes.

Q. And let me show you what I've previously had marked as State's Exhibit Number 72. Can you examine that and identify it for the jury, please?

A. It's a cassette tape that I had made, reference a signal 42, which is a burglary, a phone call recorded on April 3, 1993, with an address of 1402 Craig Drive in Buford.

Q. All right. And did you make that tape?

A. Yes.

Q. Have you examined that tape and listened to the contents to determine whether or not it is the tape that you created in April 1993?

A. Yes.

Q. And is it in fact the cassette that you made from the reel-to-reel of the original 9-1-1 call?

A. Yes.

Q. Thank you.

MR. PORTER: That's all the questions I have.

THE COURT: Mr. Moore?

CROSS EXAMINATION

BY MR. MOORE:

Q. Ma'am, my name's Johnny Moore. I have just one question for you. You don't have any personal knowledge of what happened other than what's on the tape, do you?

A. No.

Q. Okay.

MR. MOORE: That's all on this. Thank you.

THE COURT: Redirect?

MR. PORTER: No redirect, Your Honor. We would ask that supervisor Taylor be allowed to go back to the police department. She's been working.

THE COURT: All right. You can come down.

THE WITNESS: Thank you. Do I leave this?

MR. PORTER: Just leave it there.

[The witness stepped down from the stand.]

THE COURT: Call your next witness.

MR. PORTER: We call Loretta Bates to the stand.

[The witness was called to the courtroom and stepped to the witness stand.]

MR. PORTER: Ms. Bates, could you have a seat right up there, please. Good morning.

THE WITNESS: Good morning.

MR. PORTER: Could you raise your right hand, please. Do you solemnly swear the testimony you're about to give in this matter now pending shall be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS: I do.

Whereupon,

LORETTA BATES

having been called as a witness and duly sworn, was examined and testified, as follows:

DIRECT EXAMINATION

BY MR. PORTER:

Q. You can put your hand down. Take a deep breath. Is this the first time you've ever testified?

A. No.

Q. Let me ask you, what is your name, please?

A. Loretta Bates.

Q. And how are you employed, Ms. Bates?

A. Currently, I'm employed for J. W. Marriott. At the time of this incident, I was employed with Gwinnett County police department.

Q. And what were your duties in April 1993 at the Gwinnett County police department?

A. I was a 9-1-1 dispatcher.

Q. And can you describe for the jury what does a 9-1-1 dispatcher do?

A. A 9-1-1 dispatcher, we receive incoming calls, we dispatch calls, police and med, and assist the county as best we can.

Q. All right. Are the calls that come in to 9-1-1 recorded?

A. Yes, they are.

Q. And are they kept on file?

A. Yes.

Q. And are the voices that are on the 9-1-1 tape part of that recording?

A. Yes.

Q. Let me ask you to take a look at State's Exhibit -- which we've had marked as State's Exhibit Number 72, and particularly what's inside of the box. Could you take a look at that and see if you've ever seen that before?

A. No.

Q. You've never seen the tape?

A. No.

Q. Well, let me ask you, Ms. Bates, this morning, were you asked to listen to a tape?

A. Yes, I was asked to listen to a tape.

Q. All right. Did you see the tape in the machine?

A. Yes. I saw this tape in the machine.

Q. All right. And did you in fact listen to the tape?

A. Yes.

Q. Is your voice on the tape?

A. Yes.

MR. PORTER: Your Honor, at this time, we would move for admission of State's Exhibit Number 72, based upon the foundation of Lenora Taylor and Ms. Bates as identifying the machine was properly operating, that the process was, in making the copy, was properly checked, and Ms. Bates has identified her voice off of the tape.

THE COURT: Mr. Moore?

MR. MOORE: Your Honor, I think it's admissible, but I think he needs to ask her if it's a true and accurate representation of what she heard first, too, I mean --

THE COURT: I agree.

MR. PORTER: Thank you, Your Honor.

BY MR. PORTER:

Q. Ms. Bates, having listened to the tape, is it a true and accurate representation of what happened on the call on April 3, 1993?

A. Yes.

MR. PORTER: Your Honor, we would move with that foundation.

THE COURT: Any objection?

MR. MOORE: No objection to the tape, Your Honor.

THE COURT: State's 72 is admitted without objection.

BY MR. PORTER:

Q. Now, let me also show you what I've had marked as State's Exhibit Number 73. Can you look at this and identify it, please?

A. Yes.

Q. What is that?

A. It's a call card.

Q. All right. Can you tell us what a call card is?

A. A call card is the card that we use when we receive an incoming call. On that card, it has the location, where the incident occurred, the complainant's name, her phone number, it has my number, radio number, the position I was sitting at, and it also has the beep number for the officer that's being dispatched to the call. It also has a signal on there which indicates what type of call it is, and it also has who dispatches the call, as well as how it was handled.

Q. All right. Now, let me ask you to examine State's Exhibit Number 73.

MR. PORTER: And, Your Honor, prior to going into the contents, the state would move to admit State's Exhibit Number 73.

THE COURT: Mr. Moore?

MR. MOORE: No objection, Your Honor.

THE COURT: State's 73 is admitted without objection.

BY MR. PORTER:

Q. Let me ask you to look at State's Exhibit Number 73. Did you fill portions of that card out?

A. Yes.

Q. And is that your handwriting on those?

A. Yes.

Q. Did you actually dispatch the officer or did you just receive the 9-1-1 call?

A. I received the call.

Q. All right. And then when you receive a call, what do you do with the card?

A. Once the call is received, it's handed to the dispatcher on the radio, at that time, to dispatch to the officer.

Q. Okay. And does the dispatcher call out or fill out the rest of the card once the dispatch is made?

A. The dispatcher, she will put her number in the -- on the card saying that she was the one that dispatched the card. She will also, at the bottom of the card, it will say unit. Under the unit, she will put down the officer's number who's in that particular zone at that time that she dispatched, and for the code, she will put if that case was -- how he handled the case, if there was a report made.

Q. Let me ask you, are the cards also time-stamped?

A. Yes, they are.

Q. And are they time-stamped at each step of the way?

A. Yes. It's stamped when the call is received, dispatched, arrived, and completed.

MR. PORTER: Your Honor, at this time, the state would like to play for the jury the tape which has been designated as State's Exhibit Number 72. We do not have any other questions for Ms. Bates.

THE COURT: Mr. Moore?

MR. MOORE: Your Honor, I might have a couple of questions, if we could, before we play the tape.

THE COURT: Any objection, Mr. Porter?

MR. PORTER: No, Your Honor. That seems to be the best way to do it.

THE COURT: Go ahead, please.

CROSS EXAMINATION

BY MR. MOORE:

Q. Ms. Bates, Mr. Porter asked you about the signal and the codes on here. Could you explain to the jury what those -- what the signals are and the codes and what they mean?

A. Signal 42 is a burglary. Code 32 -- I'm not sure if that meant that it was handled by a report. It's been a while since I've last seen these codes. I haven't worked for the county in over a year.

Q. Okay. It shows the dispatcher as Number 42. Do you know who that is?

A. Yes.

Q. And who is that?

A. I believe that was Mrs. McDaniel.

Q. And the time stamps that are referred to on there, that Mr. Porter referred to, could you examine that and tell the jury what time stamps are there and what they mean?

A. The call was received April 3, 1993 at 1504. Received was when I stamped the card. That was after I obtained all the information from Mrs. Thompson. At 1508, where it says dispatch, that was the time that operator 42 dispatched the call. 1521 was when the officer arrived at the scene. 1540 was when the call was completed and he advised her that he was Code 32.

Q. Okay. And Code 32 means what? Or is that the one you said you don't remember?

A. Yes.

Q. Okay. You don't have any personal knowledge of what's on these tapes other than what's recorded, do you?

A. Nothing other than what I heard this morning.

Q. Okay. Did somebody tell you something this morning or -- without going into it, I mean --

A. I heard the tape this morning.

Q. You listened to the tape this morning?

A. Yes.

Q. That's what you meant. Okay.

MR. MOORE: No further questions.

THE COURT: Mr. Porter?

MR. PORTER: Your Honor, we have no other questions for Ms. Bates and we would ask that she be excused. At this time, the state would like to play the tape.

THE COURT: Would you approach the bench, please?

[Counsel approached the bench and the following conference ensued outside hearing of the jury.]

THE COURT: I gather we don't have any objections to it being played, but do you want her to stay until it's played in case there's any other questions?

MS. ROGAN: That might be a good idea.

MR. MOORE: It might be a good idea, Judge, since we haven't heard it.

THE COURT: Okay. Is there going to be any objection to playing it?

MR. MOORE: No, Your Honor.

THE COURT: Okay. Why don't you do that, just leave her on the stand? If there are any follow-up questions, you can.

[Bench conference concluded.]

MR. PORTER: Ms. Bates, while we play the tape, if you could just remain right where you are. It will only take a second.

[Whereupon, the audiocassette tape was played.]

THE COURT: All right. Any other direct examination of this witness?

MR. PORTER: No, Your Honor. No other direct examination.

THE COURT: Mr. Moore, any other questions?

MR. MOORE: No, Your Honor.

THE COURT: All right. Do you want her to be released or excused?

MR. PORTER: Yes, Your Honor, please.

THE COURT: Do you want her on call?

MR. PORTER: She is local, Your Honor. She can remain on call.

THE COURT: You can come down.

THE WITNESS: Thank you.

[The witness stepped down from the stand.]

THE COURT: Call your next witness, please.

MR. PORTER: We call Marilyn McDaniel to the stand.

[The witness was called to the courtroom and stepped to the witness stand.]

THE COURT: Ma'am, if you'll be seated up here on the stand.

MR. PORTER: Ms. McDaniel, could you raise your right hand, please. Do you solemnly swear the testimony you're about to give in this matter now pending, shall be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS: Yes, I do.

Whereupon,

MARILYN MCDANIEL

having been called as a witness and duly sworn, was examined and testified, as follows:

DIRECT EXAMINATION

BY MR. PORTER:

Q. And could -- you can let your hand down, and could you state your name, please?

A. Marilyn McDaniel.

Q. Ms. McDaniel, how are you employed?

A. I was employed at the time of the call here at -- with Gwinnett County communications.

Q. Where do you work now?

A. I'm unemployed right now.

Q. Let me ask you, how long -- what were your duties at the Gwinnett County communications?

A. We took 9-1-1 calls and we dispatched zone calls to handle for police, fire, and ambulance.

Q. All right. How long did you work there?

A. Almost eight years.

Q. Let me ask you, do you have any independent recollection of a call that you dispatched on April 3, 1993, to the home of Emogene Thompson?

A. No. Uh-uh [negative].

Q. I'd like to show you what has been marked as State's Exhibit Number 73, and can you take a look at this, and particularly the right hand side of it, and describe for the jury, what that portion of the call card is?

A. It just shows here that I dispatched this call to this particular zone unit.

Q. All right. Let me ask you, how do you know that you dispatched it from looking at that document?

A. Because I have a number there and my number's here in the dispatch block where I dispatched it.

Q. All right. Is that in your handwriting?

A. Yes. Uh-huh [affirmative].

Q. And then how do you know which zone unit you dispatched?

A. We get a daily duty roster and it has the zones that we have available for that particular area, and then it's in the beat here for the zone, it's written in there for which zone is supposed to be covered by that.

Q. All right. And what zone did you dispatch the card to according to the document?

A. 332.

Q. And is that dispatch notification of 332 in your handwriting?

A. Yes. Uh-huh [affirmative].

Q. When you dispatch an officer to a call, do the officers call back and tell you what the status is, how they handled the call?

A. Yes. Uh-huh [affirmative].

Q. Do you make a notation on the card at the time of the call back?

A. Right. Uh-huh [affirmative].

Q. Did you in fact make a notification on State's Exhibit Number 72 [sic]?

A. Uh-huh [affirmative].

Q. And what did you --

A. Code status is Code 32.

Q. And can you tell the jury what does Code 32 mean?

A. No report.

Q. Thank you.

MR. PORTER: That's all the questions I have.

THE WITNESS: Is that it?

THE COURT: Just a moment.

MR. PORTER: Just a second. Mr. Moore gets to ask you some questions.

THE WITNESS: Okay.

CROSS EXAMINATION

BY MR. MOORE:

Q. Ms. McDaniel, my name is Johnny Moore. Now, did I understand you to say that Code 32 is no report required?

A. Uh-huh [affirmative].

Q. Okay. Is that a pretty standard thing at the police department that you get calls where there's no reports required?

A. Oh, yeah.

Q. I mean, it happens all the time?

A. Uh-huh [affirmative].

Q. It's nothing unusual?

A. Uh-uh [negative].

Q. Okay. Now, when you left the police department, did you already have another job lined up?

A. No. Uh-uh [negative].

Q. Would you tell us why you left the police department?

MR. PORTER: Your Honor, I'm going to object to this. This is irrelevant. It's not an --

THE COURT: Would you approach the bench, please?

[Counsel approached the bench and the following conference ensued outside hearing of the jury.]

THE COURT: Where are we headed?

MR. MOORE: Your Honor, she resigned because of an investigation out there that involved the theft of property.

MR. PORTER: I don't think unless he can make a showing of that, that he can improperly impeach this witness because it's not a conviction.

MR. MOORE: I don't know what she's going to answer, Your Honor. I asked her if she resigned. There's been no finding of guilt or anything.

MR. PORTER: But it's an attempt to impeach the witness through her own statement. It's improper. This witness doesn't know all of her rights as far as impeachment. She doesn't even know she doesn't have to answer the question.

THE COURT: Well, I guess thus far we don't have a question asking did you take anything or did you do anything wrong. I guess the question is the basis for why you left.

MR. PORTER: I mean, Your Honor, I'll rely in good faith on Mr. Moore saying that he has the evidence to produce this, but I'm not sure that even if he could prove it, it's impeachable material.

THE COURT: Well, I guess the question is, you're talking about a conviction, is that what you're talking about?

MR. PORTER: Your Honor, I'm not aware of a conviction.

THE COURT: No, but I'm saying is that what you're saying? You got to have a certified copy of the conviction for impeachment, is that what you're saying?

MR. PORTER: Yeah. Your Honor, you've got to have the witness either could not have testified to the facts testified to, that she has testified inconsistently in the past, that she has a prior felony conviction, or she has committed a crime of moral turpitude. Those are the four statutory methods of impeachment.

MR. MOORE: Your Honor, I think bias and prejudice either for or against the police department also can be explored into.

THE COURT: Well, that's the part I was coming to. I guess if it's not for impeachment, then for what purpose? You're saying it just relates to her credibility the reason she left?

MR. MOORE: Yes, sir. I mean, I don't know that she's going to admit anything. I don't expect she would. From what I understand, she denied everything and she resigned under pressure, but I mean, if she has bad feelings toward the police department, if she didn't think they investigated it properly or something like that, then --

MR. PORTER: But how is that irrelevant to this issue? She's testified to a very limited issue. How does it -- there's been no showing there is any bias. She's identified a document and said she had no independent recollection of it, but she filled out three portions of the document.

THE COURT: What do you contend it relates to, Mr. Moore?

MR. MOORE: Well, Mr. Porter put her up. He must have thought it was important to have her there, so her credibility is in issue. I mean, once he puts her up, if it wasn't important, then he didn't need to put her up.

MR. PORTER: Your Honor, she is important for a specific purpose, but to allow -- he's either going to impeach her -- but to talk about general bias or lack of credibility, that goes to the issue to which she's testified. The only way you can show general lack of credibility is through a prior conviction.

THE COURT: Well, what has she testified to at this point? She's testified -- she's laid the foundation for the business record. Well, not really a business record, but she's testified that she took the call --

MR. PORTER: She dispatched the call.

THE COURT: And as to what the officer's response -- this is the defendant's response.

MR. PORTER: Well, Your Honor, that hasn't been established yet.

THE COURT: I know, but that's where we're going; right?

MR. PORTER: It's basically it.

MR. MOORE: If Mr. Porter's concerned about her incriminating herself or something, Your Honor, I wouldn't have any objection to sending the jury out and having you advise her to what her rights are, you know.

MR. PORTER: Your Honor, I'm not concerned about her incriminating herself. I'm concerned out of a sense of simple decency this woman not be abused unnecessarily because the laws of evidence don't permit it. It's irrelevant to bring up any reasons why she left unless Mr. Moore can make a showing there is some bias or prejudice, not speculate that she may not have liked the police department because they made accusations.

MR. MOORE: She's the only one who knows whether she has biases and prejudice, I mean --

THE COURT: Well, my inclination is to let you ask the question and go into it on a very limited basis as to her leaving under pressure or resigning under pressure, but not, well, did you commit any crime or --

MR. MOORE: I'm not going to ask her that, Your Honor.

THE COURT: -- have you been convicted or have you been indicted or have you been arrested or any of that sort of thing. What do you want to ask her?

MR. MOORE: Basically, if she -- whatever she answers, Your Honor, I might follow up with was she satisfied with the police investigation of it. That's all.

THE COURT: I'll allow that. I think that's an appropriate question.

MR. SMEAL: It seems to the state that the fact that there was no report or the fact that Mike Chapel was dispatched to the burglary is not being contested in this case by the defense, so how is the issue of bias relevant to those two issues if they're not contesting the fact that there was no report or that Chapel was dispatched?

MR. MOORE: Your Honor, this officer is a witness here and it's a key issue in this case, the investigative techniques of the police department, whether or not they do a good job in their investigations, and they've injected it by putting her up as a witness.

MR. PORTER: This isn't an investigative technique. This is a dispatcher --

MR. MOORE: If she was investigated, it is.

MR. PORTER: The fact that she was investigated isn't an investigative technique in relation to Michael Chapel's guilt or innocence.

MS. ROGAN: She's also answered in a misleading fashion already about what Code 32 means.

MR. PORTER: Which was clarified on cross- examination.

MS. ROGAN: No, it wasn't correctly.

MR. PORTER: Well, correctly, depending on --

THE COURT: You can ask it, Mr. Moore, and then if you want to ask about whether she's satisfied or not, but I don't want --

MR. MOORE: I'm not going to go into detail.

THE COURT: Okay.

[Bench conference concluded.]

THE COURT: Go ahead, please.

BY MR. MOORE:

Q. Ms. McDaniel, could you tell us why you left the police department?

A. I resigned due to some stress and stuff that was going on. I'd gone through a divorce and some stuff that an ex-husband had come up with that was -- that he had brought and stirred up a lot of stuff.

Q. Okay. Was there an investigation by the police department into that?

A. Right. Uh-huh [affirmative].

Q. Were you satisfied with the investigation?

A. Well, I didn't think it was really fair.

Q. Now, this Code 32, again, I've conferred with -- and I think I may have misled you. I said no report required, but actually it's no report requested, isn't it?

A. Right. Uh-huh [affirmative].

Q. Rather than no report required?

A. Uh-huh [affirmative].

Q. It's no report requested?

A. Right.

Q. And that's by the victim. The victim didn't request the report?

A. Right.

Q. Is that what that means?

A. Right.

MR. MOORE: Thank you.

THE COURT: Redirect?

REDIRECT EXAMINATION

BY MR. PORTER:

Q. Ms. McDaniel, would the fact that you left the police department, under the circumstances that you've described affect your testimony here today as to the -- your identification of the call card?

A. No. Uh-uh [negative].

Q. Did you in fact fill out the call card?

A. I -- yes, the side over here is the code status and it was me dispatching it and the unit that I sent, yes.

Q. Thank you. That's all the questions I have.

THE COURT: Recross?

MR. MOORE: Nothing further, Your Honor.

THE COURT: You can come down. Call your next witness, please.

MR. PORTER: Your Honor, we would ask that Ms. McDaniel be allowed to leave. She is available and can be reached. I believe she lives outside of Atlanta and would take some time to get here.

THE COURT: All right. You just want her on call at this point?

MR. PORTER: If we could just put her on call.

THE COURT: All right. Mr. Moore, any objection to that?

MR. MOORE: No, Your Honor. No objection.

THE COURT: All right. You'll be subject to recall, Ms. McDaniel. Call your next witness, please.

[The witness stepped down from the stand.]

MR. PORTER: The state would call Michael Thompson to the stand.

[The witness was called to the courtroom.]

THE COURT: Mr. Thompson, if you'll be seated up here on the witness stand, please.

[The witness stepped to the stand.]

MR. PORTER: Could you raise your right hand, please. Do you solemnly swear the testimony you're about to give in this matter now pending, shall be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS: I do.

Whereupon,

MICHAEL KEITH THOMPSON

having been called as a witness and duly sworn, was examined and testified, as follows:

DIRECT EXAMINATION

BY MR. PORTER:

Q. And if you could sit back and you're going to have to speak up so the jurors can hear you. Could you state your name and spell it, please?

A. Michael Keith Thompson, M-i-c-h-a-e-l, K-e-i-t-h, T-h-o-m-p-s-o-n.

Q. Mr. Thompson, are you related to the victim, Emogene Thompson?

A. Yes.

Q. And can you describe that relationship?

A. I'm her son.

Q. In April 1993, where did you live?

A. 1472 -- 1402 Craig Drive.

Q. And where is that located?

A. Buford, Georgia.

Q. Who did you live there with?

A. Her.

Q. And how long had you and your mother lived together in April 1993?

A. About four years.

Q. Could you describe the house?

A. It was a trailer, single-wide trailer.

Q. Let me ask you, in 1992 and 1993, did you become aware that your mother had received an insurance settlement?

A. Yes.

Q. And can you tell us how much you became aware that she had received?

A. $25,000.

Q. Can you describe the circumstances under which she received --

THE COURT: Can all the jurors hear?

A JUROR: Barely.

THE COURT: Okay. Mr. Thompson, if you'll speak up into the black microphones and stand up the microphone and speak up, please, so everybody can hear.

THE WITNESS: Okay.

THE COURT: Go ahead, please.

BY MR. PORTER:

Q. Can you describe for the jury the circumstances under which she received that $25,000?

A. It was a insurance benefit from her boyfriend.

Q. Do you know what your mother did with the money once she received it from the insurance company?

A. She had deposited it in the bank and was going to get our place fixed up.

Q. Now, let me call your attention to April -- excuse me, March of 1993. Do you know whether or not your mother withdrew that money from the bank?

A. Yes.

Q. Do you know how much money was withdrawn from the bank?

A. $14,000.

Q. Did you ever see the $14,000?

A. Yes.

Q. And can you describe what denominations it was in?

A. Hundred dollar bills.

Q. What did your mother do with the money?

A. She hid it in the house.

Q. All right. Do you know where?

A. Yes.

Q. And where did she hide it?

A. Taped to the back of her second drawer in her dresser.

Q. All right. When did you find out she had hidden the money?

A. She told me she hid it in the house.

Q. How was it packaged?

A. In bank envelopes.

Q. How many were there?

A. Two.

Q. You say that she told you where the money -- where the money was hidden. Was that as soon as she had taken it out of the bank?

MS. ROGAN: Your Honor, I'm going to object. Can we approach, please?

THE COURT: Yes.

[Counsel approached the bench and the following conference ensued outside hearing of the jury.]

MS. ROGAN: He's clearly about to elicit hearsay from the victim. The state had the opportunity to establish this witness's hearsay testimony through the necessity exception at the hearing that we had pretrial, and they did not call him at that time. And it's our position that they have waived the right to have this witness testify as to the hearsay.

MR. PORTER: Your Honor, I don't believe we've waived any right, first of all.

THE COURT: I don't either.

MR. PORTER: Second of all -- second of all --

THE COURT: I think it's like filing a motion in limine and lose it, you can renew it and, you know, raise your objections and all that sort of thing. I don't think there's any waiver. I don't think so.

MR. PORTER: Your Honor, I'm not going to elicit testimony in any significant fashion except to establish that this witness knew where the money was hidden immediately upon its withdrawal from the bank, and I can ask the question in that way.

THE COURT: Yeah. I guess -- did you know where the money was? Yeah. Well, how do you know? Well, she showed me or she told me or whatever, you know. I guess that's hearsay in a sense, do you know where it was.

MR. PORTER: But I don't intend to get into any conversations.

THE COURT: That's the extent of it? She told him where it was, and he knew where it was?

MR. PORTER: Yes, sir.

MS. ROGAN: Okay. I just wanted to make -- I mean, there's a lot of other hearsay the witness potentially could testify to.

MR. PORTER: Oh, sure.

MS. ROGAN: And I don't want to --

THE COURT: Well, I guess however old he is, he's got that many years worth of potential hearsay, I guess.

MS. ROGAN: I just wanted to make sure that our objections were on record as to --

THE COURT: Okay.

MS. ROGAN: -- hearsay that we haven't previously discussed in a pretrial hearing.

THE COURT: Okay. Does that satisfy your concern?

MS. ROGAN: If that's the extent of what he's going to elicit, yes.

THE COURT: Okay. All right.

[Bench conference concluded.]

THE COURT: Go ahead, please.

BY MR. PORTER:

Q. Mr. Thompson, the point that I'm getting to is, did you know where the money was as soon as it came out of the bank?

A. Not as soon as it came out of the bank.

Q. About how long was it after the money came out --

A. About a week.

Q. And how did you know that the money was there?

A. I found it after my mother told me where it was at.

Q. All right. So prior to you finding it, she had already told you?

A. Uh-huh. Yes.

Q. Now, let me call your attention specifically to April 3, 1993. Were you at home that day?

A. I think I was. Yes.

Q. On that day, are you aware of whether or not your mother reported to the Gwinnett County police department a theft?

A. Yes.

Q. Were you present when the police officers responded?

A. Yes.

Q. Do you know the officer who responded?

A. Yes.

Q. Who was it?

A. Mike Chapel.

Q. Did you know him prior to April 3?

A. No.

Q. Had you ever seen him prior to April 3?

A. In his patrol car around town, but I had never met him.

Q. Could you describe what happened when Officer Chapel responded to the complaint of a theft at your house?

A. Well, he come out because my mother had called him to -- about a burglary and he was the officer that come out to, I guess, fill out the report for it. And, basically, that's about all. We talked about the money, you know, and where it was and how much had come up missing and --

Q. Were you present during these conversations between Officer Chapel and your mother?

A. Yes.

Q. Were you aware of how much money that was gone?

A. Not exactly. Mostly half of what it was.

Q. What did Officer Chapel tell your mother about whether or not it was a burglary?

A. He -- I presumed he thought that I had done it at first.

Q. Did he confront you with thinking that you did it?

A. Yes.

Q. Did he actually ask you if you did it?

A. Yes.

Q. What did you say?

A. No.

Q. Did Officer Chapel ever ask you to leave the trailer?

A. Yes.

Q. And where did you go when you left the trailer?

A. Outside.

Q. And did you happen to see what happened or was going on inside the trailer after you left?

A. Yes.

Q. Describe for the jury how you saw it.

A. I looked through the window in the door.

Q. And what did you see?

A. My mother showing him the money that was left.

Q. Did they do anything with the money when -- that was left?

A. She just took it out and showed her -- showed him what she had left.

Q. About how long was Officer Chapel there?

A. About roughly thirty minutes.

Q. At that time, did he accuse you again of stealing the money?

A. Yes.

Q. Michael, did you steal the money?

A. No.

Q. Why not?

A. I wouldn't have to. My mother would have given me anything. All I had to do was ask for it. I wouldn't have had to have stolen it from her.

Q. After the report of the theft, do you know where your mother kept the remainder of the money?

A. Yes.

Q. Where did she keep it?

A. In her purse.

Q. And where did she keep her purse?

A. With her at all times.

Q. Did she keep anything else in the purse?

A. All her jewelry mostly.

Q. Now, during the time between April 3 and April 15, did you have any occasion later on to have any other contact with Officer Chapel?

A. Yes.

Q. Can you describe those contacts for the jury?

A. I just met him at my place of business at that time. He just talked to me for about five minutes and that was all.

Q. What did he say?

A. He was just asking me if I had had any more leads or anything on the case.

Q. Did he accuse you again of stealing the money?

A. No.

Q. At the Subway, he didn't accuse you?

A. No.

Q. Did he give you any indication that he was following up on the case himself?

A. No.

Q. Now, let's go to the evening of April 15, 1993. Did you see your mother that night?

A. Yes.

Q. Where did you see her?

A. I was with her most of the afternoon.

Q. All right. And what did you do?

A. We had -- well, she slept till about seven and then we went out and eat and went back home.

Q. Now, you say she slept till seven --

A. She worked third shift, so she slept most of the day.

Q. Where did she work?

A. CIBA Vision.

Q. And what was the hours that she worked?

A. Eleven to seven.

Q. Where did y'all have dinner?

A. Waffle House.

Q. About what time did you go home?

A. Roughly between 8:30 and nine.

Q. All right. And where did your mother go?

A. She went to the house and was going to get -- finish getting ready for work.

Q. And what time did she leave?

A. I wasn't there when she left, so I don't know exactly what time she left.

Q. Did you ever see your mother alive after that?

A. No.

Q. When's the -- what kind of car did your mother drive?

A. An '86 Lincoln Continental.

Q. And what color was it?

A. Chocolate brown with a tan convertible type top.

Q. The next morning, on April 16, did you have an occasion to see that vehicle again?

A. Yes.

Q. Where was it?

A. In front of Gwinnettco Muffler with a flat tire.

Q. Had you received information from someone that the car was there?

A. Yes.

Q. And did you go to the Gwinnco Muffler?

A. Yes.

Q. What did you see about the car?

A. It was already marked off with crime scene tape when I arrived.

Q. All right. Would they let you approach it?

A. No.

Q. How would you describe your emotional state that morning?

A. Shocked, illusions, disillusioned.

Q. Let me ask you, at the time that you went to the scene, did you request that the police look for your mother's purse?

A. Yes.

Q. And to your knowledge, was that purse found at the scene?

A. To my knowledge, it wasn't there.

Q. Have you ever received it?

A. No.

Q. Have you ever gotten it back?

A. No.

Q. Have you ever gotten the $7,000 that was in it?

A. No.

Q. Now, Michael, I'd also like to ask you about the week after the murder. Did you need some money that week?

A. Yes.

Q. What did you do to get the money?

A. I pawned a gun.

Q. What kind of gun was it?

A. A rifle.

Q. Was it a rifle that you owned?

A. It was my mother's.

Q. How much did you get for it?

A. I think it was $60.

Q. Thank you.

MR. PORTER: That's all the questions I have.

THE COURT: Mr. Moore?

MR. MOORE: Ms. Rogan's going to handle this, Your Honor.

THE COURT: Okay. Ms. Rogan?

MS. ROGAN: Could I move this podium a little? I can't hear you very well.

MR. MOORE: Where do you want it?

MS. ROGAN: I'm sorry. Just up a little bit closer. Thank you.

CROSS EXAMINATION

BY MS. ROGAN:

Q. Good morning, Mr. Thompson.

A. Good morning.

Q. I'm Elizabeth Rogan. We've met before, haven't we?

A. Yes.

Q. You've told us that you have seen Officer Chapel in his patrol car around the neighborhood where you lived previously, prior to the time he responded to your call to your home.

A. Yes.

Q. Do you recall that he responded to a call at your place of employment, as you said, which was the Subway Sandwich Shop --

A. Yes.

Q. -- in late March?

A. Not that I can recall.

Q. You don't remember that? You don't remember him coming out? There was an accusation of theft.

MR. PORTER: Your Honor, I'm going to object. That's not a question. Ms. Rogan's testifying and nodding her head. I believe she -- even on cross-examination, although she can ask leading questions, she has to ask questions.

THE COURT: What was the question?

MS. ROGAN: I asked him if he remembered the incident that I described.

MR. PORTER: But then, Your Honor, it was 'don't you remember he came out,' and she's nodding her head. That's not a question. That's testimony.

THE COURT: Well, state your question --

MS. ROGAN: All right.

THE COURT: -- and let him answer. Go ahead. Restate your question, please.

MS. ROGAN: All right.

BY MS. ROGAN:

Q. Do you remember an incident involving an accusation of theft by an employee, not by you, but by a different employee that Officer Chapel responded to at the Subway shop?

A. Not to my knowledge. I can't remember.

Q. Now, you've told us that your mother had inherited about $25,000 altogether?

A. Yes.

Q. Through the insurance benefits from her former boyfriend who had --

A. Yes.

Q. -- who had died of cancer, I believe?

A. Yes.

Q. And that between the time she started to receive the money, which was about November 1992 --

A. Yes.

Q. -- until April, she had spent about $10,000 of it.

MR. PORTER: Your Honor, again, that's not a question. That's testimony. If Ms. -- the question is, did she spend $10,000? Did she spend about $10,000? Ms. Rogan is testifying and asking the witness to affirm it, which is not --

THE COURT: That's the nature of a leading question, it seems to me.

MR. PORTER: Your Honor, I don't even believe these are in the form of a question.

THE COURT: All right. Well, ask the question again.

BY MS. ROGAN:

Q. Did your mother, between the time she received the money and April 1993, spend about $10,000 of that money?

A. Yeah, roughly.

Q. So there was about $14,000 left in late February, March?

A. Yes.

Q. And she withdrew the -- did she -- she withdrew the rest of that money in early March?

A. Yes.

Q. Do you remember testifying previously in a hearing related to this case that she had withdrawn the money in mid-February?

A. Not to my knowledge.

Q. You don't remember testifying or you don't remember saying that?

A. I don't remember saying that.

Q. You don't remember saying that?

A. No.

Q. Would it refresh your recollection if I gave you a transcript of the testimony you previously gave?

A. Was that in the deposition?

Q. Excuse me?

A. In the deposition?

Q. Yes.

A. It may have been. I don't know the exact date that she had withdrawn it.

Q. Would it help you to look at the deposition to refresh your recollection?

A. Yeah.

[Defendant's exhibit was marked for identification by the court reporter.]

BY MS. ROGAN:

Q. Okay. I'm going to show you what's been marked as Defendant's Exhibit 46. Have you ever seen this before, Mr. Thompson?

A. Yes.

Q. Do you -- what do you recognize it to be?

A. A deposition that I gave.

Q. Just one second because I neglected to show it to the state.

[Brief pause in proceedings]

BY MS. ROGAN:

Q. I'm going to direct your attention to Page 66. If you would just read starting at Line 11 through about Line 17.

A. [Witness reads document.]

Q. Okay. Does that refresh your recollection --

A. Yes.

Q. -- as to what you said during the deposition?

A. Yes.

Q. All right. Sir, do you now recall testifying previously that she had withdrawn the money in mid-February?

A. Yes.

Q. Now, you've told us that your mother discovered that half of her money was missing?

A. Yes.

Q. She discovered the money missing sometime before she called the police?

A. Yes.

Q. Okay. It was a couple of weeks?

A. A couple of days.

Q. A couple of days?

A. [Witness nods head affirmatively.]

Q. Do you remember telling us in the deposition, testifying under oath in the deposition, that she had discovered the money missing in late March?

A. I don't remember.

Q. Okay. Would it refresh your recollection to look at the deposition again? I direct you to Page 67. Right there. Page 66, Line 24, 25, and then a little bit on Page 67, would you just --

A. Okay.

Q. -- look at that and refresh your recollection.

A. [Witness reads document.]

Q. Okay. Does that refresh your recollection?

A. Yes.

Q. Okay.

A. I'm sorry.

Q. So do you now recall --

A. Yes.

Q. -- testifying that she had discovered the money missing in late March? Now, she called the police. She placed a 911 call on April 3; is that correct?

A. Yes.

Q. That was a Saturday?

A. I think so. I'm not -- I can't remember.

Q. You were home?

A. Yes.

Q. Okay. And you were there when Officer Chapel responded to the call?

A. Yes.

Q. And Mr. Thompson, your mother did believe at that time that you had been involved in taking the money?

A. No.

MR. PORTER: Your Honor, I'm going to object to this. There's been no foundation laid, and this is irrelevant to this issue. He's answered the question.

THE COURT: Ms. Rogan?

MR. PORTER: Your Honor, she's eliciting --

THE COURT: Would you approach the bench, please.

[Counsel approached the bench and the following conference ensued outside hearing of the jury.]

MR. PORTER: Ms. Rogan's eliciting information she's objected to from the state putting in. This is information they have argued is inadmissible, the victim's state of mind or her belief.

THE COURT: Ms. Rogan?

MS. ROGAN: Well, it also has to do with what she told Mr. Chapel, and this witness has testified previously that his mother did believe and confront him about having taken the money.

MR. PORTER: That doesn't make it any more admissible.

THE COURT: What are you going to ask him? What are you --

MS. ROGAN: I'm going to ask him if he remembers if he -- if his mother believed he'd taken the money. If he denies that, I am going to impeach him with his prior testimony that he -- his mother believed he'd taken the money and said that to him.

MR. PORTER: And, Your Honor, the state's position is the underlying testimony is inadmissible. They can ask him if he took the money, but they can't ask him what his mother believed.

MS. ROGAN: It's extremely relevant to the manner in which Mr. Chapel handled this case, Your Honor, and which is one of, you know, the state's major arguments. I think we're entitled to cast the investigation --

THE COURT: It's basically another hearsay argument; right?

MS. ROGAN: Excuse me?

THE COURT: It's basically another hearsay issue; right?

MS. ROGAN: Yes, it is.

THE COURT: What does your mother believe and then -- isn't that the essence of it?

MS. ROGAN: Yes.

THE COURT: Then why is it admissible or not admissible, I guess is the question. Why do you contend it is admissible?

MS. ROGAN: Under the necessity exception.

THE COURT: Mr. Porter?

MR. PORTER: How do they contend that it's admissible under these circumstances, but it's inadmissible in the circumstances where Detective Latty says it? How do they distinguish this between a situation where Ms. Thompson believed that the officer was following her? How is Mr. Moore relying on that?

MS. ROGAN: Because this is going directly to the person she said it to.

MR. PORTER: That testimony is too.

THE COURT: What did he say in the -- was this a prior hearing or what?

MS. ROGAN: It was a deposition in the civil case.

THE COURT: Okay, in the civil case. Okay. What did he say in that?

MS. ROGAN: He said that he believed -- that his mother believed he had taken the money and she did not necessarily think that it was -- had been a burglary.

THE COURT: Did he say that's what she said or it was his conclusion as to what she believed or what?

MS. ROGAN: I have the deposition. My recollection is that it was more his conclusion of what she believed.

MR. PORTER: I believe that's correct, Your Honor. Officer Chapel said it wasn't a burglary, and Officer Chapel said that he took the money, and he told Emogene Thompson that. He says that in his own statement.

THE COURT: Well, it seems to me what you're offering in is what do you think your mother's state of mind was and what did she believe about him taking the money as opposed to conversations or declarations. I mean that's what I'm hearing you say.

MS. ROGAN: Uh-huh.

THE COURT: I mean I don't believe that comes in by way of necessity.

MR. MOORE: Your Honor, how about if it's approached in a different way, if she ever confronted him and accused him, without asking what she said. I think that's a fact. If she had confronted him and accused him, that's not hearsay, without saying what she said.

MS. ROGAN: Also, Your Honor, at this point, the record shows that she did not request that a report be made. That's what Code 32 means.

THE COURT: Well, but that's not the issue here.

MS. ROGAN: No, I know, but I mean in the context -- the state is trying to imply that Mr. Chapel took it upon himself not to investigate this case when in -- their own documents establish that she did not want to prosecute because she thought her son had taken the money. That sheds a completely different light on the case which I think we're entitled to establish.

THE COURT: But all that's -- I think that's all sort of collateral at this point. What is it you want to ask him?

MS. ROGAN: I want to ask him if -- I'll ask him if his mother confronted him about having taken the money.

MR. MOORE: And Your Honor, there's an exception to explain conduct -- to explain her conduct of why she did not want a report made in the case.

MR. PORTER: Your Honor, if she's saying the question is if his mother ever confronted him, I agree with Mr. Moore, it's a fact. But what Ms. Rogan's trying to get in is what was your mother's state of mind, did she believe you stole the money?

THE COURT: Well, that's the problem I've got with that question, what do you think she's thinking, you know.

MR. PORTER: Your Honor, and I hate to -- I'll wait for the Court's ruling, but I have another issue. I don't want to stand up every time Ms. Rogan testifies, but these simply are not questions.

THE COURT: Well --

MR. PORTER: And the law contemplates questions, even though they are leading.

THE COURT: Well, a suggestion, I guess -- well, it's sort of semantics.

MR. PORTER: Well, Your Honor, I see it as something different than semantics. It's that Ms. Rogan is testifying.

THE COURT: Well, that is a leading question. I mean that's what you're doing with a leading question is you testify for him and say 'isn't that right.' I mean that's the essence of a leading question.

MR. PORTER: But in the situation we have here, we don't even have 'isn't that right.'

THE COURT: Okay. Well, maybe throw in 'isn't that right.'

MS. ROGAN: Well, I'll add 'isn't that right' on the end.

THE COURT: I mean that's the purpose of cross, to testify for them, and that's why everybody wants to do it with leading questions, and they're stupid if they don't.

MR. PORTER: Well, I understand that, Your Honor.

THE COURT: Well, as far as the issue as far as him testifying to her state of mind, the objection is sustained. And if there is a -- if we have a hearsay issue separate from that, then, I think that's a different question. And do we have that question, I guess, is my question?

MS. ROGAN: It depends, I suppose, on how he answers the first question.

THE COURT: Well, the first question is what was she thinking, and then the objection is sustained.

MS. ROGAN: Right. Now the first question would be did she confront you about about having stolen the money. If he denies that, then, it seems to me, I've got some right to impeach him on that with his prior testimony.

THE COURT: Have you got your transcript here from the civil case?

MS. ROGAN: Yes.

THE COURT: We'll send the jury out and just sort this out.

MS. ROGAN: Okay.

THE COURT: Okay?

MS. ROGAN: Okay.

[Bench conference concluded.]

THE COURT: We have some matters to take up that won't require the presence of the jury, so I'm going to go ahead and -- you're going to be taking a -- you'll be taking a recess here shortly anyway. We'll just go ahead and you can take a recess. And if they want a cup of coffee or something to drink, we can do that.

Leave your pens, pads, and notes in your seats. They'll be waiting on you when you return. I'll ask you to go with the bailiffs at this point.

[The jury was excused from the courtroom for the recess.]

THE COURT: All right. Ms. Rogan, with respect to the -- I believe the question you want to pose is --

MS. ROGAN: Your Honor, well, could we do this outside the presence of the witness?

THE COURT: Well, I want to know what he's going to say.

MS. ROGAN: All right.

THE COURT: I mean that's what I want to know, what's he going to say so we can proceed on to the next one.

MS. ROGAN: All right.

THE COURT: What questions do you want to ask?

MS. ROGAN: Well, I wanted to ask if his mother believed that he had taken the money.

THE COURT: All right. Which was objected to by the state.

MS. ROGAN: That's correct.

THE COURT: That objection is sustained.

MS. ROGAN: Okay. So then I will ask, did your mother ever confront you about having taken the money?

THE COURT: All right. And what's your answer?

THE WITNESS: Yes.

THE COURT: Okay. What's your next question?

MS. ROGAN: When Officer Chapel came out to investigate, did he also confront you about having taken the money?

THE WITNESS: Yes.

MS. ROGAN: That's essentially what I wanted to ask.

THE COURT: Okay.

MR. PORTER: Those aren't objectionable questions.

THE COURT: All right. Any other matter we need to clear up while the jury's out?

MR. PORTER: Unless Ms. Rogan -- Your Honor, unless Ms. Rogan wants to give me a copy of all of her questions and I can anticipate the objections, then I think we're going to have to sort of catch it as we go.

THE COURT: Well, you can throw in 'isn't that right' on your questions.

MS. ROGAN: Okay. I will.

[Laughter]

THE COURT: All right. Anything else at this point, Mr. Porter?

MR. PORTER: Nothing from the state, Your Honor.

THE COURT: Ms. Rogan?

MS. ROGAN: Not that I can --

THE COURT: All right.

MS. ROGAN: -- not at this point.

THE COURT: Let's take fifteen minutes. You can come down, Mr. Thompson.

MS. ROGAN: Thank you.

THE WITNESS: Thank you.

[The witness stepped down from the witness stand.]

[Break taken]

[Following the break, all parties returned to the courtroom, and the witness resumed the stand.]

THE COURT: Is the state ready? Ready, Mr. Porter?

MR. PORTER: Yes, Your Honor.

THE COURT: Ready, Mr. Moore?

MR. MOORE: Yes, Your Honor.

THE COURT: Bring the jury back, please.

[The jury returned to the courtroom.]

THE COURT: Ms. Rogan, go ahead, please.

MS. ROGAN: Thank you, Your Honor.

MICHAEL KEITH THOMPSON

CROSS EXAMINATION - RESUMED

BY MS. ROGAN:

Q. Okay. Mr. Thompson, I apologize for that lengthy delay. I think where we left off was your mother calling the police on April 3 regarding the money that she had discovered missing several days previously.

A. Yes.

Q. Okay. Did she confront you about having taken that money?

A. Yes.

Q. When Officer Chapel came out to the trailer home that day to investigate, did he also confront you?

A. Yes.

Q. And, in fact, he asked you to step outside for a while while he was there so that he could talk to your mother privately?

A. Yes.

Q. Isn't it true that Mr. Chapel told you that he thought that the theft of the money involved drugs and the people who live next door to you?

A. No.

Q. He never told you that?

A. [Witness shakes head negatively.]

Q. Were you aware that your mother had recontacted the police over that weekend --

A. No.

Q. -- after that Saturday visit?

A. No.

Q. Now, Mr. -- Officer Chapel came to the Subway where you worked on the Monday following his visit on Saturday, didn't he?

A. I don't remember exactly what day it was.

Q. You do remember him coming --

A. Yes.

Q. -- to speak to you again?

A. Yes.

Q. And didn't he in fact confront you again about having taken the money and coming clean about that?

A. No.

Q. He never said anything to you --

A. I don't -- I don't remember to my knowledge.

Q. Excuse me?

A. Not to my knowledge.

Q. Not to your knowledge. You don't remember him asking you to --

A. No.

Q. -- stop hurting your mama like that?

A. No.

Q. Your testimony is that he came out to see if you had any other leads into the burglary?

A. Yes.

Q. Mr. Thompson, you actually had taken some of that money previously, hadn't you?

A. Yes.

Q. About $400 of it?

A. Yes.

Q. You had found out where it was hidden and taken it?

A. Yes.

Q. You had also previously forged some checks on your mother's checking account?

A. No.

MR. PORTER: Your Honor, I'm going to object to this. This is not relevant to the -- and there's no proof.

THE COURT: What is the relevance, Ms. Rogan? Why don't you approach the bench.

[Counsel approached the bench and the following conference ensued outside hearing of the jury.]

THE COURT: Where are we going?

MS. ROGAN: I'm trying to establish that his mother had a well-founded belief for thinking that he might have taken the money.

THE COURT: Well -- Mr. Porter?

MR. PORTER: Your Honor, I don't think that that's an -- it's an attempt to impeach the witness's credibility improperly.

MR. MOORE: Your Honor, his lack of money and everything goes to his motive and intent for this burglary, just like Mr. Porter contended to the nature of Officer Chapel. It goes to his motive and intent to commit the crime --

THE COURT: Well, but we don't have anybody on trial here for burglary. Burglary is not the issue. What does it matter at this point who took the money?

MS. ROGAN: It matters in terms of how Mr. Chapel responded to this situation. The state is making a big deal about the fact that he didn't investigate this burglary. And the fact is, he didn't think it was a burglary, and there are valid reasons why he didn't think it was a burglary.

MR. PORTER: Let him explain them.

THE COURT: Well, your questions, though -- it seems to me the line of questioning is not what Mr. Chapel did, but now, then, we've shifted over into, you know, for this witness 'what did you take before, did you forge a check,' or whatever else. I don't know where else we're going, but I mean what's that got to do with Mr. Chapel?

MS. ROGAN: Because Mr. Chapel is responding to the information he was getting from the victim and how to respond to this case, how to deal with it.

THE COURT: Well, is any of this tied to Mr. Chapel's investigation or his inquiry?

MS. ROGAN: It's tied insofar as the victim told Mr. Chapel that she believed her son had taken the money, and she didn't want to prosecute him, and she'd had a history of him stealing from her.

THE COURT: Mr. Porter?

MR. PORTER: Your Honor, again, it's inadmissible hearsay.

THE COURT: I thought she was asking him 'did you forge -- had you ever forged checks.'

MR. PORTER: Well, what she's doing is trying to bring this witness's character and credibility into play without going through the proper method of character impeachment. If she wants to ask Mr. Chapel what the victim told him and ask him to explain his conduct, then let him explain it. He's sitting right here in the courtroom.

MS. ROGAN: Well, we will.

MR. PORTER: But this is not the way.

MS. ROGAN: But I think that, you know, obviously a defendant's word is --

THE COURT: Well, what do you want to ask this witness? What questions do you want to ask him along this line?

MS. ROGAN: I want to ask him if he'd ever forged checks on his mother's checking account. He's already admitted in the deposition that he did.

MR. PORTER: That's irrelevant, Your Honor, that he admitted it in the deposition. It's whether or not it's admissible in front of this jury. And they're going to put Michael Thompson on trial for the -- for the theft, which is not an issue in this trial.

MS. ROGAN: It is an issue in this trial, Your Honor.

THE COURT: And why is it?

MS. ROGAN: Because if everyone believed that he had taken the money, even if it's not true, that goes miles towards explaining why Mr. Chapel responded in the way he did. It wasn't because he wanted the money himself and was trying to, you know, set up this meeting with her. It was because there was nothing to investigate. She wasn't going to prosecute her son and that was the end of the issue as far as he was concerned.

THE COURT: Well, yeah. Maybe so.

MR. SMEAL: Does the defense intend to establish that any alleged forgeries were brought to Chapel's attention?

MS. ROGAN: Yes. The victim told him that she had had trouble with her son stealing money from her for quite a while.

MR. PORTER: But, Your Honor, if that's true and it is admissible to explain Chapel's conduct, then it's the testimony of Chapel if it's elicited -- it's irrelevant to this issue as to whether or not --

THE COURT: Well, I think you can raise that by your direct. I think if on direct you ask this witness whether the defendant asked you to step outside, and then what did you see. Well, I saw him -- he was sitting there looking at the money with the victim. I think that's a reasonable area of cross-examination as to, well, the reason he asked -- I presume that's where we're headed that, you know, that's the reason he wanted him to step out was over the concern about the son. Maybe she wouldn't talk about that in front of the son, so he sent him out so we can talk about that.

MR. PORTER: But does this witness know about that?

THE COURT: Well, if -- that's the subject.

MR. PORTER: I mean can this witness testify that's why Chapel asked me to step outside?

THE COURT: Well --

MS. ROGAN: I'm not going to ask him that.

THE COURT: What do you want to ask? Do you want to ask him did he forge a check?

MS. ROGAN: Uh-huh.

THE COURT: I'll allow that.

MS. ROGAN: And if he denies it --

THE COURT: Okay. I'll allow it.

MS. ROGAN: -- I've got testimony that he previously has given that he said he had.

THE COURT: All right. I'll allow that. What else do you want to ask him about along those lines?

MS. ROGAN: Then my next question was going to be what about the resort that his mother --

THE COURT: About the what?

MS. ROGAN: The reason she was hiding the money was because she was about to be sued by a resort, and I wanted to establish that through him that he and she had gone in together on this timeshare that she was trying to get out of.

MR. PORTER: How is that -- why is it relevant to the reason she withdrew the money?

THE COURT: What is its relevance?

MS. ROGAN: Well, it's relevant. Number one, it's relevant that she was hiding the money from the law, but aside from that, she was -- he had a pattern of getting her into financial trouble.

THE COURT: I don't think that's relevant.

MS. ROGAN: I won't insist on that.

THE COURT: What kind of financial manager he is, I don't think is relevant.

MS. ROGAN: Okay.

THE COURT: You can ask the question about the forgery.

MS. ROGAN: Okay.

THE COURT: Okay.

[Bench conference concluded.]

THE BAILIFF: Judge, may I?

THE COURT: Yes.

[A conference was held between the Court and the bailiff, as follows.]

THE BAILIFF: The jurors say they cannot hear this guy.

THE COURT: Yeah. We'll ask him to speak up.

[Conference concluded.]

THE COURT: What's your question, Ms. Rogan? Please speak up, Mr. Thompson, so everybody can hear you.

BY MS. ROGAN:

Q. I'm sorry about all of these stops and starts, Mr. Thompson. My question for you is had you ever forged checks on your mother's account before?

A. No.

Q. Do you remember testifying previously in this case, in the deposition?

A. Yes.

Q. Do you remember testifying at that time that you had forged checks against your mother's account?

A. Not to my recollection.

Q. Okay. Would reviewing your testimony from the deposition refresh your recollection on that point?

A. Yes.

Q. Okay. If you'll bear with me for just a moment.

MS. ROGAN: I'm sorry, Your Honor, I had written down the wrong page, and I'm just trying to locate the correct one.

BY MS. ROGAN:

Q. I'm going to come back to that. No. I think I've got it. I'm going to come back to that. You've told us that your mother had been carrying, in addition to the balance of the money, she'd been carrying her jewelry in her purse?

A. Yes.

Q. Why was that; do you know?

A. She always done that.

Q. She had always done that?

A. Yes.

Q. Do you know the reason why she had always done that?

A. It was just -- she just always did it. She didn't want to leave it in the house for someone to break in and steal it.

Q. Okay. She was worried about her jewelry getting stolen if it was in the house?

A. [Witness nods head affirmatively.]

Q. Are you aware of whether your mother had pawned some jewelry in February 1993?

A. No.

Q. Now, you've told us that you were with your mother during the afternoon of April 15, that Thursday --

A. Yes.

Q. -- until -- and that she was sleeping for a large part of that time because she worked at night?

A. Yes.

Q. And she got up around seven and you went to the Waffle House?

A. Yes.

Q. Okay. And do you remember telling Investigator Burnette that you had gone to the Waffle House with your mom and you had steaks?

A. Yes.

Q. Okay. And you came back from the Waffle House around 8:30, quarter till nine?

A. Yes.

Q. Okay. And then you left and you presume your mother got ready to go to work?

A. Yes.

Q. Okay. When you left, you went next door to your friend, Amy Parker's house?

A. No.

Q. Where did you go?

A. It was down the street at another friend of mine's house.

Q. Excuse me?

A. Down the street at another friend's house.

Q. You didn't go to Amy Parker's house?

A. No.

Q. Do you remember making the statement to Detective Ervin on the day after they found your mom's body?

A. Not to my recognition. I don't recognize his name.

Q. You don't remember making the statement? Okay.

MS. ROGAN: I'd like to have this marked, please. Okay.

[Defendant's exhibit was marked for identification by the court reporter.]

BY MS. ROGAN:

Q. I'm going to show you what's been marked as Defendant's Exhibit 49 and ask you just to look at this. You don't need to read the whole thing. I just want you to see if that looks familiar to you.

A. Yes.

Q. Okay. Did you write this, Mr. Thompson, or did --

A. No.

Q. -- Detective Ervin write it for you?

A. Yes.

Q. Okay. He wrote it for you?

A. Yes.

Q. Did you sign your name, though?

A. Yes.

Q. Is that your signature? And you signed down on the second page?

A. Yes.

Q. Okay. Okay. I'd like to direct your attention to -- okay. Well, why don't you just take a look at this statement. Read it to yourself, if you could, and see if that refreshes your recollection as to what you did that night.

A. [Witness reads document.]

Q. Did you read it?

A. Yes. I remember now.

Q. Okay. All right. So, when you got home from the Waffle House, where did you go?

A. I went down to Pat's house after I got home. That's another friend of mine's house down the street.

Q. Okay. And then -- then you went back to your mom's house around --

A. No. I stopped at Amy's next door, then went home.

Q. Okay. And, to your knowledge, had your mom already left for work --

A. Yes.

Q. -- when you stopped at Amy's?

A. Yes.

Q. Okay. And Amy told you that she'd seen your mom leave around --

MR. PORTER: Objection, Your Honor. This would be hearsay.

THE COURT: What is the question?

MR. PORTER: 'And Amy told you,' and that's enough for me to indicate that it would be hearsay.

THE COURT: All right. Ms. Rogan?

MS. ROGAN: I'll rephrase it.

THE COURT: All right. Restate your question.

MS. ROGAN: Okay.

BY MS. ROGAN:

Q. Did you become aware that night as to what time your mom had left for work?

A. Yes.

MR. PORTER: Your Honor, again, this would be hearsay, the contents of it. He can answer that question, but the contents of the statement would be hearsay.

THE COURT: Ms. Rogan?

MS. ROGAN: Well, the DA has already conceded that he can answer that question.

MR. PORTER: Your Honor --

THE COURT: But it's your next question he's about to object to. State your question.

MS. ROGAN: I'd like to ask him did you become aware that your mother left for work --

MR. PORTER: Your Honor, I'm going to object to this. First of all, the question is objectionable. She's trying to get an out-of-court statement for the time that Ms. Thompson left not only through testifying, but through hearsay to this witness. If she wants to prove it, let them bring Amy Parker in.

THE COURT: Ms. Rogan?

MS. ROGAN: Can I ask him what -- if he knows what time his mom left for work that night?

THE COURT: I think you can sure ask that. I guess that's a yes or no. I don't know about the next question. Go ahead.

BY MS. ROGAN:

Q. Do you know what time your mother left for work that night?

A. No.

Q. Okay. After you'd stopped by Amy's house and went back to your house, what did you do then?

A. Watched some TV and fell asleep.

Q. Okay. Did you call anyone that evening from your home?

A. There was a couple of people had called my house. I don't -- I don't really remember calling anyone.

Q. Is it possible you did call someone?

A. I could have. I'm not sure.

Q. Do you recognize the pager number 341-4224?

A. No.

Q. Do you -- do you not recognize it at all or you just can't remember right now --

A. I don't -- I don't recognize it.

Q. -- who it might belong to?

A. I don't recognize who it might belong to.

Q. Okay. Were you making -- is it possible you were making calls to that pager during the week before your mother died?

A. Not to my knowledge. I don't -- I don't recognize the number.

Q. Excuse me?

A. I don't recognize the number.

THE COURT: Please speak up, Mr. Thompson, so everybody can hear you.

BY MS. ROGAN:

Q. So you don't know whether you made a call to that pager number at 11:00 o'clock that Thursday night or not?

A. Right.

Q. And you don't know for sure whether you might have called that pager number about seventeen times during that preceding week?

A. Right.

Q. Now, the next day, you were awoke by Ms. Chance, your mother's colleague from work?

A. Yes.

Q. Okay. And she told you something about the car at the Gwinnco Muffler?

A. Yes.

Q. When you went to the scene, the police were asking questions about what you had done the night before?

A. Yes.

Q. Did you believe that the police were asking you essentially to clear yourself?

A. Yes.

Q. You've told Mr. Porter on direct examination that you had pawned a rifle in the weeks after your mother was killed?

A. Yes.

Q. Okay. Do you remember when exactly it was you pawned that rifle?

A. No.

Q. Do you remember testifying at this deposition that we had that you had never pawned a rifle?

A. Not really.

Q. Okay. Would it refresh your recollection to look at -- this time, I have the page number. I'd like you to start at, I guess, Line 20, and go through 25 and let me just check -- yeah, go on through Line 4 or 5, I guess.

A. [Witness reads document.]

Q. Okay. Does that refresh your recollection, Mr. Thompson?

A. Yes. Yeah.

Q. All right. Do you now recall testifying under oath at this deposition --

A. Yes.

Q. -- that you had never pawned a rifle?

A. Yes.

Q. Okay. And that if the police had that information, they must be mistaken about it?

A. I don't -- I don't know. I did, but it was for -- I had -- I had give the rifle to somebody else and they wanted me to pawn it for some money because they didn't have the -- no ID so --

Q. Okay. But my question to you was, did you -- you now admit that you did pawn a rifle?

A. Yes.

Q. Okay. And when you previously testified, you told me that you had never pawned a rifle ever, you never owned a rifle?

A. No.

Q. And that's not true, is it?

A. Yes, that's true.

Q. It's not true that you've never pawned a rifle?

A. Oh. No.

Q. Okay. After your mother died, you inherited some money from her insurance policies, didn't you?

A. Yes.

Q. You got about $115,000 altogether; isn't that right?

A. Yes.

Q. And shortly after you received the money, you purchased a Corvette automobile, didn't you?

A. Yes.

Q. Okay. And you paid for it in cash?

A. Yes.

Q. And you went on a cruise --

A. Yes.

Q. -- to the Caribbean or Mexico?

A. Mexico.

Q. Mexico. And you took your neighbor, Amy Parker, with you on the cruise?

A. Yes.

Q. You never paid for your mother's funeral though, did you, Mr. Thompson?

A. No.

Q. In fact, you were sued by the funeral home --

A. Yes.

Q. -- for that unpaid funeral?

A. Yes.

Q. And at this point no one has ever paid for that funeral?

A. Yes. It's been paid for.

Q. It has been paid. Have you paid for it?

A. No.

Q. Okay. Other people have paid for it?

A. Yes.

Q. You were married yourself, and your wife died.

You were divorced from your wife. Isn't that correct?

A. No.

Q. You were just estranged from her?

A. We were separated.

Q. Okay. And she died of a medical condition --

A. Yes.

Q. -- in March of 1993?

A. Yes.

Q. And you have a daughter?

A. Yes.

Q. Her -- she's about nine years old now?

A. Yes.

Q. Do you pay child support for your daughter?

A. No.

Q. Okay. Did you use any of the money that you'd gotten from the inheritance to establish a college fund for your daughter?

MR. PORTER: Objection, Your Honor. This is not relevant.

THE COURT: What's the relevance, Ms. Rogan?

MS. ROGAN: Well, I'm heading somewhere that's relevant. If I could approach the bench --

MR. PORTER: Your Honor, she's headed to trash Mr. Thompson because he didn't happen to spend the money in a way in which she agrees. It doesn't make it relevant.

THE COURT: The objection's sustained.

BY MS. ROGAN:

Q. You sold your mother's trailer after her death; is that right?

A. Yes.

Q. You became the sole owner of the trailer?

A. Yes.

Q. And you sold the trailer for about $5,000?

A. Yes.

Q. How much was the trailer worth at that time?

MR. PORTER: Your Honor, I'm going to object to this as irrelevant. This whole line of questioning is irrelevant.

THE COURT: Ms. Rogan?

MS. ROGAN: Your Honor, I think it's relevant to establish Mr. Thompson's bias and credibility.

THE COURT: The objection's sustained. Would you approach the bench, please.

[Counsel approached the bench and the following conference ensued outside hearing of the jury.]

THE COURT: Where are we headed?

MS. ROGAN: Well, I have a number of questions about his use of the money that he obtained.

THE COURT: What does it matter?

MS. ROGAN: Well, I think it shows a pattern of stealing money or misusing money, for one thing.

THE COURT: All right. He's a beneficiary of an insurance policy. That's not stealing. He can spend it all over --

MS. ROGAN: Yeah, but I mean -- I guess I might phrase it better, spending money wantonly and having a need for money that doesn't seem to be satisfied by the normal --

THE COURT: It might be entertaining, but I don't think it's relevant.

MR. PORTER: Your Honor, it's a way to trash Michael Thompson in a way that -- and how he spent his money is his business.

THE COURT: I'm inclined to agree.

MR. PORTER: I mean, we might not be happy with it, and we might not agree with it; and, in fact, I don't agree with it, but it's his money, and he can do what the heck he wants with it.

THE COURT: Oh, I agree. I agree with that, unless there's some relevance to some questions that you've not stated at this point.

MS. ROGAN: Well, Your Honor, the bottom line is he's denied having stolen the money from his mother, in the first place, and I think that if we were allowed to develop evidence that I'm being prevented from developing, I think that there would be a strong indication that he did in fact steal that money.

THE COURT: Well, even if he did, even if he did, what does that show with respect to the issue of money?

MS. ROGAN: It shows that Mr. Chapel responded appropriately to the situation he was confronted with.

THE COURT: Well, I think -- if it does have any connection, it's mighty far removed. I'm going to sustain the objection to that line of questioning. Let's move on.

MS. ROGAN: Okay.

[Bench conference concluded.]

THE COURT: What's your question, please?

BY MS. ROGAN:

Q. After your mother was killed, you filed a lawsuit against Mr. Chapel, didn't you?

MR. PORTER: Your Honor, I'm going to object to this as irrelevant. This has no relevance to whether or not Mike Chapel is guilty of murder, whether Mr. Thompson has sought any other remedy.

THE COURT: What is the --

MS. ROGAN: Your Honor, I think that definitely goes to his bias and credibility in terms of this case and his testimony in this case.

MR. PORTER: Your Honor, the fact that a lawsuit has been filed without more, certainly without more, has nothing to do with his bias or prejudice in this case. And I think it's misleading to the jury to talk about it in the way in which it's being talked about and plus it's not relevant.

THE COURT: It was a suit for money damages; right?

MS. ROGAN: That's correct, Your Honor.

THE COURT: The objection's overruled.

BY MS. ROGAN:

Q. Did you file a lawsuit against Michael Chapel?

A. No. Not against Michael Chapel, against Gwinnett County.

Q. You didn't file a lawsuit against both Michael Chapel personally and Gwinnett County?

A. No.

Q. So it's your understanding that you never filed a lawsuit against Michael Chapel?

A. No.

Q. You were seeking money damages from Gwinnett County?

A. Yes.

Q. And why were you seeking money damages against Gwinnett County?

A. Wrongful death.

Q. Of your mother?

A. Yes.

Q. How much money were you seeking, Mr. Thompson?

A. I --

THE COURT: Would you approach the bench, please.

[Counsel approached the bench and the following conference ensued outside hearing of the jury.]

THE COURT: I'm inclined to allow questions to show -- enough to show he's filed a suit, he's got an interest, he's seeking money damages and includes the defendant. I think that's appropriate.

MS. ROGAN: Well, yeah --

THE COURT: I think that's appropriate; but, you know, I don't contemplate spending the rest of the day about that suit.

MS. ROGAN: I don't intend to spend the rest of the day either. There was just one more question. Unfortunately, I have this recorded documentation in our office that it's very clearly against Michael Chapel individually.

THE COURT: Well, that's the problem. I mean what does he know about lawsuits, you know.

MS. ROGAN: Well, he shouldn't go filing them, then.

MR. PORTER: He didn't file it, for cripes sake, Your Honor.

THE COURT: Well, that's why he's got a lawyer. I mean that's why he's got a lawyer, you know.

MS. ROGAN: Right.

THE COURT: What does he know about his suit, you know.

MS. ROGAN: Yeah. Yeah.

THE COURT: What does he know?

MR. MOORE: Doesn't it show on the front of the deposition who he was suing?

MS. ROGAN: Yeah, but it says -- it doesn't say. It says Michael Harold Chapel.

THE COURT: Well, anyway, where are we headed with this? What do you want to ask him?

MS. ROGAN: I'm just about to wrap it up. I mean I was -- I'm actually about to wrap the whole thing up. I just --

THE COURT: Okay. I just don't want a protracted cross over that --

MS. ROGAN: No, I understand. I understand.

THE COURT: -- but I think you're entitled to go into it, but --

MS. ROGAN: But I'd also like -- I would like to inquire how much money he was seeking.

MR. PORTER: Does he know?

MS. ROGAN: Well, if he knows. If he doesn't --

THE COURT: I'll allow that. Then let's move on.

MS. ROGAN: Okay. No problem.

[Bench conference concluded.]

THE COURT: Go ahead, please.

BY MS. ROGAN:

Q. How much money were you seeking in the lawsuit that you filed?

A. Twenty million.

Q. Twenty million dollars. And if I could just show you the cover of this transcript we've been referring to. If you could look at the caption of the case --

A. Uh-huh.

Q. -- can you tell us, please, what it says in terms of who the parties are?

A. Do you want me to read them out loud?

Q. Yes, if you would, please.

A. Okay. Michael Harold Chapel and Gwinnett County by and through its commissioners, Wayne Hill, Chairman, Tony Hughes, Doug Williamson, Judy Waters, and Renee Unterman, defendants.

Q. Okay. So it lists you, Michael Thompson, on behalf of Emogene Thompson as the plaintiff?

A. Yes.

Q. And it lists Michael Harold Chapel and Gwinnett County commissioners, listing them by name, as the defendants?

A. Yes.

Q. Just one moment.

[Pause in proceedings.]

BY MS. ROGAN:

Q. Mr. Thompson, you never saw your mother leave for work the night she was killed?

A. Uh-uh. No. Excuse me.

Q. Okay. So you don't know for certain that she had her purse with her that night?

A. Not for certain, but she -- it went everywhere she did.

Q. But you don't -- you didn't see it with her that night?

A. No.

Q. Okay. That's all I have.

THE COURT: Redirect?

REDIRECT EXAMINATION

BY MR. PORTER:

Q. Mr. Thompson, let me ask you, when you went back to your home after going to the Gwinnco that morning, or at any time after that, did you find your mother's purse?

A. No.

Q. Did you find the $7,000 that was in the purse?

A. No.

Q. When you filed this lawsuit against the defendant, did you hire an attorney?

A. Yes.

Q. Did you decide who to sue or did the attorney?

A. I did, I guess, basically because --

Q. Did the attorney draw the paperwork?

A. I assume he did.

Q. And did you just sign off on it?

A. Yes.

Q. Did you ask for a specific amount of money or did the attorney decide that?

A. Well, I had stated a figure and what I said earlier was what he had put in on it for.

Q. Now, at the time of your deposition, did you have the opportunity to review the documents regarding the pawning of the rifle?

A. No.

Q. And at the time of your deposition, did you remember pawning the rifle?

A. No.

Q. Have you had the opportunity since then to review the documents regarding the pawning of the rifle?

A. I haven't reviewed any documents.

Q. What changed your recollection?

A. Just from the attorneys.

Q. Which attorneys?

A. Just your office.

Q. All right. Were you allowed to review your statement in my office?

A. Exhibit 12, I think I -- is the one that I got. The one that she showed me.

Q. All right. Did anyone in my office suggest to you the answers to any of your questions?

A. No.

Q. Did anyone in my office do anything other than to tell you to tell the truth here today?

A. Right.

Q. Thank you.

MR. PORTER: That's all the questions I have.

THE COURT: Recross?

MS. ROGAN: Yes, Your Honor.

RECROSS EXAMINATION

BY MS. ROGAN:

Q. Mr. Thompson, when I asked you in your deposition, which was back in March of this year, about whether you had ever pawned a rifle, you did not tell me at that time that you do not remember pawning a rifle, did you?

A. No.

Q. You told me that you had never pawned a rifle?

A. Right.

Q. You knew that for certain?

A. Well, I wasn't for certain, but I didn't recollect at that time.

Q. Did you tell me that you didn't recollect or that you had never pawned a rifle and you knew that?

A. It states in there that I said I never did, but I didn't recollect, I guess.

Q. So you're saying you don't -- you remember now that you did?

A. Yes.

Q. Okay. Do you remember being asked the question what did you pawn --

A. Yes.

Q. -- and answering a CD player?

A. Yes.

Q. And being asked what else, and you answered, 'I can't remember what it was. It was a CD player. I know it wasn't a rifle'?

A. Yes.

Q. Okay. You remember being asked that question --

A. Yes.

Q. -- and being -- and giving that answer? And then being asked the question, 'If the police had information that you pawned a rifle there, they're mistaken about that,' and giving the answer, 'They must be because I've never pawned -- I haven't done nothing like that.'

A. Well, I've -- I've never owned a gun or anything like that, and it was my mother's boyfriend's rifle, and it was left to me, basically, so I guess I had -- I had sold the rifle. And the guy that I sold the rifle to needed to pawn it for -- needed some money so I --

Q. You were pretty clear in this testimony that you had never pawned a rifle regardless of where it had come from.

A. To my recognition [sic], I must have been mistaken.

Q. Okay. One last thing, Mr. Thompson. What did your mother's pocketbook look like?

A. I think it was a white purse. I'm not real positive.

Q. You don't remember?

A. [Witness shakes head negatively.]

MS. ROGAN: That's all.

THE COURT: Anything else of this witness?

MR. PORTER: No, Your Honor.

THE COURT: Do you want him to remain on call?

MR. PORTER: Your Honor, he's local. He works and lives in the Buford area. He's available.

THE COURT: Okay.

MR. PORTER: And I believe he's under defense subpoena, but the state does not anticipate recalling him.

THE COURT: All right. You'll remain under subpoena, but you can come down, and you'll be subject to being recalled, Mr. Thompson. You can come down. Call your next witness, please.

[The witness stepped down.]

MR. PORTER: Your Honor, before I call my next witness, could we approach?

THE COURT: Yes, sir.

[Counsel approached the bench and the following conference ensued outside hearing of the jury.]

MR. PORTER: Your Honor, I have two witnesses. One's going to be very brief. One's Winderweedle to identify a note and one's Sergeant Stone, and then I anticipate calling the hearsay witnesses.

THE COURT: How long do you think these first two will be?

MR. PORTER: Winderweedle's going to identify the statement note.

THE COURT: Stone will be long or short?

MR. PORTER: Stone will be a little bit longer.

THE COURT: I'd like to go on beyond twelve, maybe -- it would be nice to go on till about 12:30. Probably it's the last thing with the jurors and then they shut everybody down down there so everybody's locked out while the jurors are going through --

MS. ROGAN: We know.

THE COURT: And if we wait until after twelve or so, then it helps make things a little better for everybody else.

MR. PORTER: Well, Your Honor, the next witnesses in the sequence of the case are the hearsay witnesses after Stone.

THE COURT: Okay. How long do you think Stone will be?

MR. PORTER: Fifteen, twenty minutes on my end.

THE COURT: Do you think you're going to be a while?

MR. MOORE: I think we'll be a little longer, Your Honor, because --

THE COURT: Okay. All right. Let's plan on running those two then --

MR. PORTER: Yeah.

THE COURT: -- and maybe that will work out. We'll send the jurors out and then we'll take up the hearsay -- hold your hearsay witnesses. And during the course of the lunch break, we'll put them up and see what they're going to -- get all that sorted out before the jury comes back.

MR. PORTER: They're here but I wanted to let you know what the schedule was like.

THE COURT: Okay.

MS. ROGAN: Okay.

[Bench conference concluded.]

THE COURT: Call your next witness, please.

MR. PORTER: I call Sergeant Rick Winderweedle to the stand.

[The witness was called to the courtroom.]

MR. PORTER: Rick, would you take the stand right there, please?

[The witness stepped to the stand.]

THE COURT: Go ahead and be seated.

MR. PORTER: Would you raise your right hand, please. Do you solemnly swear the testimony you're about to give in this matter now pending shall be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS: Yes, I do.

Whereupon,

R. H. WINDERWEEDLE

having been called as a witness and duly sworn, was examined and testified, as follows:

DIRECT EXAMINATION

BY MR. PORTER:

Q. Can you state your name, please?

A. R. H. Winderweedle.

Q. And how are you employed?

A. As a sergeant for the Gwinnett County police department.

Q. Officer Winderweedle, I'd like to call your attention to April 1993. Were you assigned to the northside or Buford precinct at that time?

A. Yes, I was.

Q. And what were your duties at that time?

A. I was the day watch uniform sergeant.

Q. I'd like to call your attention specifically to April 4, 1993, did you receive a telephone call from a person who identified themself as Emogene Thompson?

A. Yes, I did.

Q. Did you memorialize that telephone call in a note?

A. Yes, I did.

Q. All right. Just a moment. If I could have just a second. Let me show you what I've had marked as State's Exhibit Number 74. Can you take a look at that, please, and can you identify it for the jury?

A. Yes, I can. That's my handwriting and that's a note I left.

Q. All right. Can you describe the circumstances under which you left the note and where you left it?

A. Well, I'm -- as a uniform sergeant, I'm in and out of the precinct. And I believe at that time there was no clerk at the precinct until they came on till the evening shift so we -- we answered the phone as the phone would ring if we were in the precinct. And the phone rang and I -- I picked it up and a person identifying themself as Emogene Thompson requested to speak to Officer Chapel. I advised her that he was not there and I'd leave a message for him, he should be in later that day. As I usually do, I wrote it on whatever's available, which is usually a Post-It note. I wrote the message down, who it was to, her name, the phone number, and signed it with my name.

Q. And then what did you do with the note?

A. I put it on -- more than likely, I put it on the desk in the evening watch office, which is what we usually did with notes. We either did that or put it in his mailbox. I don't recall specifically. I either put it on the phone right next to the evening watch uniform sergeant's desk or in his mailbox.

Q. Now, Sergeant Winderweedle, other than your involvement as far as this note, did you have any involvement in the investigation of the death of Emogene Thompson?

A. No, I did not.

Q. Did you know Emogene Thompson?

A. No, I didn't.

Q. Thank you.

MR. PORTER: That's all the questions I have.

THE COURT: Would you spell your name, please?

THE WITNESS: W-i-n-d-e-r-w-e-e-d-l-e.

THE COURT: All right. And what was the date of the note? I did not understand that. I'm sorry.

THE WITNESS: 4/04/93.

THE COURT: All right. Mr. Moore?

CROSS EXAMINATION

BY MR. MOORE:

Q. Officer Winderweedle, my name is Johnny Moore. I have a few questions I'd like to ask you. You knew Officer Chapel when you worked up at the precinct up there; is that correct?

A. Yes, I did.

Q. Did you ever work the same watch that he did?

A. I believe on maybe one occasion. He worked the day watch for a short period of time and we worked together.

Q. And did you ever observe his investigative techniques in his -- as a police officer?

A. In regards to --

Q. Investigating crimes or carrying out his job, doing his job as a police officer?

A. Yes.

Q. Okay. And do you have an opinion as to whether he was doing it correctly or not?

A. Mike always did an excellent job at going out and seeking things out, but as far as his, you know, his documentation of things, we'd have to prod him along to properly document the things that he did. But as far as actually doing things, yes, he did a good job.

Q. Okay. And isn't that always a problem with officers, getting them to do the paperwork?

A. Generally.

Q. I mean, that's a common problem, isn't it?

A. Generally.

Q. Okay. Now, did you ever work out at the gym that Mike owned?

A. On occasion.

Q. Okay. And did you purchase from him a body building supplement called Testron?

A. Not that I recall. I recall him giving me something that was -- I didn't purchase anything. I recall him -- he was selling some vitamin supplements and different things like that and I recall him -- he had a different batch of supplements that he was selling at the gym and he said that several people had tried something similar to that and that it was a -- just a vitamin supplement.

Q. But you don't ever remember purchasing any of that though?

A. No.

Q. Did he ever tell you what the price of it was or anything?

A. I only -- the bottle that he gave me might have had three or four or half a dozen or something like that. It was not a -- it was not a complete -- the bottle was not completely full of capsules.

Q. But I assume he was trying to get you to buy it was the reason he gave it to you.

A. Oh, yes.

Q. Do you remember what he was charging for it?

A. No, I don't recall.

Q. Okay. Now, up at the northside precinct, in fact, all of the Gwinnett County police officers, uniform officers, are allowed to take their vehicles home; is that correct?

A. Correct.

Q. Okay. And whenever they drive their vehicles, they're required to be in uniform; is that correct?

A. Generally speaking, yes.

Q. That's the rule. I mean, I don't know that everybody follows it, but that's the rule. Everybody's supposed to -- when you're driving in your police unit, you're supposed to be in uniform; is that correct?

A. Correct.

Q. The theory being that whenever you drive your vehicle you're on duty as a police officer even though you're not being paid and you're to take care of any scene or situation that confronts you; is that correct?

A. Right.

Q. Now, up at the northside precinct back in 1993, was what's called a spare unit or a spare police car there?

A. There's a spare at every -- at least one spare at every precinct.

Q. Okay. And the purpose of that is if something goes wrong with somebody's car, they can pick up the spare and then take their car in for service later; is that --

A. Right.

Q. Okay. And where are the keys for that spare unit kept at the northside precinct?

A. I believe they were in the day watch office on the -- either in the desk drawer or on the bulletin board behind the office in the day watch sergeant's office.

Q. Okay. Now, you say the day watch, tell us how that precinct's laid out. Where the day watch is in relation to the back door, where you go out to where the cars are.

A. As you open the back door of the precinct, there's a uniform assembly room, which is probably a third of the size of this room, maybe a fourth of the size. It has several folding tables and chairs and a chalkboard, mailboxes, and such, and then you go down a small hallway and there's three different offices, small offices, with one or two desks in them for each shift, days, evenings, and mornings.

Q. Okay. And do you know of your own knowledge who's on duty up there at night in that precinct?

A. At what point in time, there's --

Q. At like from the hours of say six o'clock in the evening until the end of the -- that shift.

A. Other than the clerk, you mean? I mean, I know there are -- during the time that I recall, there was a -- because of allocations of cutbacks of manpower, they only had a clerk there on the evening watch and she stayed up front. Anybody could have come and gone through the precinct if they had a key to the back door, which would be a police officer.

Q. Okay. Could I get you to maybe draw for the jury here the precinct as best you can how it's laid out? If you could just draw what you described and then label it for the jury.

[The witness stepped to the diagram board.]

BY MR. MOORE:

A. The entire precinct or just what I described?

Q. Well, just -- the part where you come in the back door and what you described, the day watch and where the clerk is up front and everything.

THE COURT: Mr. Moore, would you open up that door all the way back to the wall, please?

MR. MOORE: Yes, Your Honor. I'm sorry.

THE COURT: Thank you.

BY MR. MOORE:

Q. And do it the way it was in 1993, too, Officer Winderweedle, because I realize there have been some changes too since that time.

A. This is somewhat similar to it. This is the door coming in the back door to the precinct. This would be the uniform assembly room, the three shifts. Behind the three shifts, there's the locker room which there was access through this hallway. And through this hallway, this was the captain's office. This was the clerk, a little -- I guess a little lounge here, and this portion of the precinct here was one of the police department's special investigation section had that area of the precinct.

Q. And where the clerk was up there, could she see people coming and going where those offices are you described there?

A. Back here?

Q. The offices one, two, and three that you numbered it.

A. No. This is a -- other than a door for her to exit into the hallway and a door for her to go there, that's a sealed room.

Q. Okay. So it's not her duty to keep up with who's coming and going in the back part of the precinct there or anything?

A. No.

Q. And where were the keys, you know, that you indicated to the spare unit?

A. This would be day watch office. If I'm not mistaken, they've changed it several times. They would either be on the wall here on a post -- a poster board, or inside the desk drawer.

Q. Okay. Are those doors locked or are those doors open?

A. Sometimes they're locked, sometimes they're open. It takes the uniform master key to open the door, but because of the need for, you know, the emergency gas card and the keys to the spare, it's sometimes left unlocked.

[The witness returned to the stand.]

BY MR. MOORE:

Q. Now, do you recall what type of -- there are different types of Gwinnett County police cars in service, different colors and everything, do you recall what type was in service as a spare unit at that time in 1993 at the northside precinct?

A. No, I don't.

Q. Okay. Would it have been an older unit?

A. Spares are generally one of the older units, yes. They don't put a new car as a spare. They put a car that's generally has, you know, 70,000 miles or better.

Q. Okay. Basically, one of the ones that's about worn out, they keep it for a spare.

A. Correct.

Q. Now, you've been trained as a police officer to observe people and observe their physical characteristics, that sort of thing, height, weight, that sort of thing; is that correct?

A. Correct.

Q. And what is Mike Chapel's physical size, if you were going to describe him?

A. Six-four, 250 pounds, 260 pounds.

Q. Now, I'd ask Mr. Chapel, if he could, to stand up and is he approximately -- is he the same size he was at this time in 1993? Is anything different?

A. He appears to be close to the same size.

Q. Thank you. I'm going to show you what's been marked as Defendant's Exhibit Number 2 and let you look at it and see if you see a vehicle on there that would resemble the spare unit that would have been up at the northside precinct at that time. Do you recognize any of them?

A. Either -- probably twelve or six.

Q. It would have been one of the older styles like either six or twelve; is that right?

A. More than likely.

Q. Okay. And number six is one of the old yellow painted Gwinnett County cars; is that correct?

A. Correct.

Q. With the yellow stripe and white car?

A. Uh-huh [affirmative].

Q. Now, Sergeant Winderweedle, and I'm not accusing you or anybody else, but now is it fair to say that when Ms. Thompson was murdered and when the police department learned that there had been a Gwinnett County police car seen at the scene, is it fair to say that everybody that worked in the northside precinct with a uniform and probably everybody in the police department was a suspect at that time?

A. I guess you could assume that.

Q. Okay. And prior to April 22 and 23 when Mike Chapel was arrested, were you ever interviewed by anybody about Ms. Thompson's death?

A. Not that I recall.

Q. Okay. Were you interviewed afterwards?

A. In regards to the --

Q. To what you might know about it, where you were that night or what you were doing.

A. I was spoken to at some point in time after that, yes.

Q. But was that after his arrest or before?

A. After.

Q. Okay.

MR. MOORE: That's all I have. Thank you.

THE COURT: Redirect?

REDIRECT EXAMINATION

BY MR. PORTER:

Q. Sergeant Winderweedle, were you working the night that Emogene Thompson was killed?

A. No. I work the day watch.

Q. And in fact you responded to the scene on April 16, didn't you?

A. Yes. Officer Byers and I responded to the scene when the call came in.

Q. Did you kill Emogene Thompson?

A. No, sir.

Q. Was any blood found in your patrol car?

A. No, sir.

MS. ROGAN: Objection.

MR. MOORE: Your Honor, he's getting into an area here now -- if he's going to present evidence on that --

MR. PORTER: Your Honor, I certainly --

MR. MOORE: -- that they tested his car, that they checked his car, then we can go into it. But I don't believe Mr. Porter can state in his place that they checked his car.

THE COURT: Well, he can ask him what he knows of his own knowledge. Objection's overruled. Restate your question, please.

BY MR. PORTER:

Q. Sergeant Winderweedle, to your knowledge was any blood found in your patrol car, the patrol car that you're assigned to?

A. No.

Q. To your knowledge have you been identified by any person as being on Peachtree Industrial Boulevard on the night of April 15, 1993?

MR. MOORE: Your Honor, I'm going to object. How would he know who might have identified him? I mean, you know, that's something not to his knowledge. I mean, that would be hearsay if he does know, if somebody told him.

MR. PORTER: Your Honor, Mr. Moore's opened the door to this.

THE COURT: Objection's overruled. Go ahead, please.

BY MR. PORTER:

A. No.

Q. To your knowledge have you been -- has your vehicle been identified in any way as being at the Gwinnco Muffler on the night of April 15, 1993?

A. No, it was not.

Q. Thank you.

MR. PORTER: That's all the questions I have.

THE COURT: Recross?

RECROSS EXAMINATION

BY MR. MOORE:

Q. Officer Winderweedle, you drove the same kind of car that Mike Chapel did, didn't you?

A. I believe so.

Q. Okay. Has your car ever been tested or checked? Have you ever taken your car in to have it tested or checked for blood at the police department?

A. No.

Q. Thank you.

MR. MOORE: That's all.

THE COURT: Anything else of this witness?

MR. PORTER: I have no other questions for this witness, Your Honor. I believe Sergeant Winderweedle's on duty and we would ask that he be excused.

THE COURT: All right. You'll remain on call. You can come down.

THE WITNESS: Yes, sir.

THE COURT: You can come down. Call your next witness.

THE WITNESS: Thank you.

[The witness stepped down from the stand.]

MR. PORTER: We call Sergeant D. E. Stone to the stand.

[The witness was called to the courtroom.]

MR. PORTER: Sergeant Stone, if you could take the witness stand over here.

THE COURT: Go ahead. They all look the same.

MR. PORTER: They all look the same, don't they?

[The witness stepped to the stand.]

THE COURT: If you'll administer the oath, please, Mr. Porter.

MR. PORTER: Could you raise your right hand, please. Do you solemnly swear the testimony you're about to give in this matter now pending shall be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS: I do.

Whereupon,

DONALD E. STONE

having been called as a witness and duly sworn, was examined and testified, as follows:

DIRECT EXAMINATION

BY MR. PORTER:

Q. You can put your hand down, and could you state your name and spell it for the record, please?

A. Donald E. Stone, D-o-n-a-l-d, middle initial E, S-t-o-n-e.

Q. And how are you employed, Mr. Stone?

A. In the Gwinnett County police department.

Q. And what are your duties there?

A. Uniform sergeant.

Q. Did you know the defendant in April 1993?

A. Yes, I did.

Q. Could you describe your relationship with him?

A. I was his uniform supervisor.

Q. And what was your personal relationship?

A. He was a close friend and a partner of mine.

Q. Are you happy to be here today?

A. No, I'm not.

Q. Let me ask you, were you his supervisor on the evening watch in April 1993?

A. Yes.

Q. As the supervisor, is it your responsibility to review the paperwork that is filed in the cases that the uniform police officers make?

A. Yes, it is.

Q. And included in that, do you review their reports and their daily activity logs?

A. Yes, sir.

Q. Do you do that every night?

A. Every day we work, yes, sir.

Q. And when do you do that?

A. At the end of the shift.

Q. Let me call your attention, specifically, to April 3, 1993. Do you know whether or not Michael Chapel was working that night or that day?

A. Yes, he was.

Q. And which watch was he working?

A. Evening watch.

Q. What zone was he assigned to?

A. Zone 332.

Q. And can you describe where that zone is?

A. That would be inside the city of Buford, city limits of Buford.

Q. Do you know whether or not he responded to a burglary call outside the city of Buford on April 3, 1995?

A. He told me he responded to a call in Sugar Hill.

Q. All right. Did he describe the call to you?

A. Yes.

Q. What did he say happened?

A. He said he had responded to a call in Sugar Hill to a trailer, I believe it was -- a burglary call and a large amount of money had been taken. He said that this large amount of money was hidden and only two people knew where the money was hidden. And approximately half the money was taken, half the money was left.

Q. Did he indicate to you that he had seen the money that was left?

A. No, I don't recall if he did or not.

Q. Did he indicate to you what the amount of the money was?

A. Yes.

Q. And what was that?

A. It was -- total should have been $14,000, and I think he said there was $7,000 that was missing -- or $14,000 and $7,000 missing.

Q. What else did he tell you about the call?

A. He said the money was hidden and it appeared to him that it was probably an inside job, that only two people knew about the money, knew where it was hidden. And burglars don't usually burglarize the home, take half the money and leave half there.

Q. All right. Did he indicate to you whether or not he was going to write a report about the incident?

A. He told me that he explained the circumstances to the victim -- I believe it was Ms. Thompson. He explained his suspicions that it was probably an inside job and he suspected her son.

Q. All right.

A. He also said that investigations revealed that he was involved in that and he would probably be arrested for the crime in stealing the money.

Q. He told Ms. -- he said to you that he had told Ms. Thompson that?

A. Yes.

Q. All right. And what did he tell you that Ms. Thompson's reaction was?

A. He said that she had thought about it and that she didn't want to write a report at that time. He said he would keep the information and if she so desired that he would write a report.

Q. All right. And when did this conversation take place with the defendant?

A. It was -- best I recall, it was two or three hours after the call, later in the evening.

Q. Was it unusual for you and Chapel to discuss the business of the day or the calls that may have come in?

A. No.

Q. Did he often come to you for advice about how to handle a call or ask you questions about how to handle a call?

A. Not necessarily. He was a senior officer.

Q. Now, when an officer is dispatched to a call, do they keep a record of those calls?

A. Yes, they do.

Q. And what's that -- what is that document called?

A. That's a Gwinnett County daily log sheet.

Q. And is each officer required to keep a log sheet?

A. Yes, sir.

Q. Sergeant Stone, let me ask -- let me ask you to take a look at what I've had marked and let me show it to the defense counsel -- let me show you what I've had marked as State's Exhibit Number 77. Can you take a look at that and see if you can identify it, please?

A. Yes, I can.

Q. And what is it, please?

A. That's a daily log sheet that's filled out by each officer during the workday.

Q. And what is the date of that daily log sheet?

A. April 3, 1993.

Q. And which officer filled that log sheet out?

A. It says M. Chapel, Badge Number 197 -- I'm sorry, 336, Zone 332.

Q. That's the zone?

A. Yes.

Q. Does it anywhere, and I'd like you to look at the entries, does it anywhere on that duty roster indicate that Mike Chapel responded to a burglary call in Sugar Hill?

A. No, sir, it does not.

Q. Now, let me ask you, second of all, about Chapel's car. In April 1993, had Chapel been recently assigned a new patrol car?

A. Yes, sir, he had.

Q. Could you describe, based on your experience, had he had problems with the maintenance of his previous patrol car?

A. Yes.

Q. Can you describe those for us?

A. It was a -- I think it was an '84 Ford. It was pretty much ragged out at the end of his tour before he got issued a new one.

Q. Did you ever have occasion as his sergeant to either discuss with him or reprimand him about the condition of his vehicle?

A. I told him several times that he had to keep his car well-maintained.

Q. And did he?

A. Not necessarily on the old one, no.

Q. So in April 1993, when he got the new car -- or in 1993, when he got the new car, did you have a conversation with him about the maintenance of the new car?

A. Yes.

Q. Just one second, Sergeant Stone. I'm going to show you what's been previously marked --

MR. PORTER: And, Your Honor, this will be out of order from the previous exhibit.

BY MR. PORTER:

Q. -- but this is State's Exhibit Number 75, can you take a look at that in conjunction with State's Exhibit Number 76 and identify both of those photographs, please?

A. Yes, I can. This is a Gwinnett County police car.

THE COURT: Which exhibit are you referring to now?

MR. PORTER: If you can refer to the exhibits by number, Sergeant Stone.

THE WITNESS: Okay. Exhibit Number 75.

THE COURT: Okay. Go ahead, please.

THE WITNESS: This is a Gwinnett County police car Ford Crown Victoria, Unit Number 197.

BY MR. PORTER:

Q. All right. And if you could look at 76, is that the -- another photograph of the same view of the same vehicle?

A. Yes, it is of the front view. Exhibit 75 is a rear view.

Q. Is that the vehicle that was assigned to Michael Chapel in 1993?

A. Yes, it is.

Q. Is that the vehicle you had the discussion with him about keeping it clean?

A. Yes.

Q. Now, I'd like to call your attention to the night of April 15, 1993.

A. Yes.

Q. Were you working that night?

A. Yes, sir.

Q. Was Michael Chapel working that night?

A. Yes, sir, he was.

Q. And what zone was he assigned to that night?

A. Zone 332.

Q. And what time does the evening watch come on?

A. 1430. That's 2:30 p.m.

Q. Did he report for work that day?

A. Yes.

Q. And did you report for work that day?

A. Yes, sir.

Q. Can you describe what contact you had with him during the time of the watch, beginning at about six or seven o'clock at night and afterwards?

THE COURT: What was the date, Mr. Porter? I didn't understand.

MR. PORTER: April 15, 1993.

THE COURT: All right. Thank you.

BY MR. PORTER:

Q. Can you describe what contact did you have with Chapel during the day of April 15, 1993?

A. It was general contact during the early part of the shift. Later on that evening at approximately 8:30, around dark, I was at the Methodist Church on Main Street in downtown Buford, listening to the AM radio and watching traffic. The National Weather Service had broke in on the radio and said there was severe weather, tornado warnings, and possibly approaching Buford. Shortly thereafter, Officer Chapel and Officer Reddy came up to the church. We talked about these warnings and I told them I was going to the fire station -- it's the same building as the precinct -- to see how the weather was on radar so I'd have some idea of how to deal with the situation if it arose, and Buford only had two officers working that area.

Q. All right. And so did you go to the precinct?

A. Yes, I did, to the fire station.

Q. All right. And what did you do while you were at the fire station?

A. We basically watched the weather.

Q. Who was there with you, first of all, from the police department?

A. Officer Chapel and Officer Reddy.

Q. About what time did Chapel arrive at the fire station?

A. He arrived shortly after I did. Him and Reddy --

Q. About what time would that have been?

A. That would have been a few minutes past -- around 8:30, right around dark.

Q. During the time that you were at the fire station and watching the weather reports, is there any specifics of any conversation you might recall with Chapel?

A. Not necessarily. I don't recall. We made comments about the weather and Officer Reddy -- we was -- made fun of him because he couldn't pick out the demographics of Gwinnett County on the map, on the state map, that was on the screen.

Q. When you were there, did Chapel at some point in time get up to leave the precinct --

A. Yes, he did.

Q. -- or the fire station. I'm sorry. Do you know what time that was?

A. The best I recall it was in the area between twenty after nine and 9:30.

Q. Did he put anything on as he left?

A. It was raining heavily. I don't recall, but he probably had on his raincoat.

Q. And did he say anything as he left?

A. He said he was going to go check his gym. He owned a gym on Moreno Street in Buford. He usually closed up at 9:30 and he was going to make sure that the people there had locked the doors.

Q. So by about 9:30, your testimony is that he was gone?

A. Yes, the best I recall.

Q. Did you see him again that night?

A. Not till the end of the shift when he came in.

Q. Now, let me ask you a little bit about the northside precinct itself, and there's a diagram there that you can refer to or not if you think it's accurate. Are there lockers in the northside precinct locker room?

A. Yes, there are.

Q. Do you yourself use a locker up there?

A. Yes, daily.

Q. Are locks assigned by the Gwinnett County police department for those lockers or are the lockers themself assigned?

A. No, sir, they're not.

Q. Are you aware of your own personal knowledge as to whether or not Mike Chapel had one or more lockers in the locker room at the northside precinct?

A. Yes. He had three lockers.

Q. All right. And how do you know that?

A. They was approximately four or five lockers down from where mine are.

Q. Did you see him use those lockers?

A. Yes.

Q. Do you know if any of those lockers were secured with a lock?

A. As I recall, there was one that was secured.

Q. Now, after the death of Emogene Thompson, and I want to talk a little bit about the day in just a minute, but after the death, were you contacted by detectives of the Gwinnett County police department to point out those lockers?

A. Yes.

Q. And did you in fact point out the lockers that you knew that Mike Chapel used?

A. Yes, I did.

Q. At that time, what was the condition of the lockers?

A. There was one that was secured with a lock and two that was not secured. Their general condition was as always, nothing obstructing the view of the locks.

Q. Did you show the detective?

A. Yes. Detective Hunnicutt.

Q. Which detective was it?

A. Detective Hunnicutt.

Q. Now, I'd like to go to the date of April 16, 1993.

A. Yes.

Q. Did you on that morning learn about or discover the fact that there had been a murder at a muffler shop in Buford?

A. Yes. I had left work -- left to go to work earlier that day. On the way to work, I was going to Mike's gym to work out prior to work for the evening shift. I learned on the radio that we -- there had been a murder in the Buford-Sugar Hill area at a muffler shop. I knew that there was only two muffler shops in that area, one being Lord's muffler on Moreno Street and one on Peachtree Industrial Boulevard in Sugar Hill.

Q. And then beyond learning that from the radio, where -- did you go on and go and work out?

A. Yes, I did. I go -- I went by that Lord's muffler and there was no activity, so I figured it had to be the one on Peachtree Industrial at Sugar Hill. I went to the gym. Mike was not there at that time. Shortly thereafter, he come in. I asked him did he know about a murder up there in Sugar Hill and he said no, he hadn't heard anything. I finished working out around one. It was my practice to leave about one and go to the precinct and get ready for work.

When I arrived at the precinct, Corporal Byers was finishing his reports. I asked him who had been murdered? He said, 'A Thompson lady.' I said, 'Thompson?' He said, 'Yes.' I said, 'I believe Chapel's had contact with that lady. I'll call him at the gym and have him come down here and advise you of what he knows.' I called him at the gym and told him about the incident and the victim. He came in shortly thereafter. I told him to get with Byers and tell him about what he knew and call the detectives, inform someone there, especially Burnette. I learned that he had -- was handling the case, and tell him about his contact with the lady.

Q. So you instructed him to call?

A. Yes, sir.

Q. Thank you, Sergeant Stone.

MR. PORTER: That's all the questions I have.

THE COURT: Mr. Moore?

CROSS EXAMINATION

BY MR. MOORE:

Q. Sergeant Stone, I believe you know me. My name is Johnny Moore. I have a few questions for you.

A. Yes, sir.

Q. Okay. Sergeant Stone, and I'm not asking you this to embarrass you, but some of the other people referred in their testimony that you've got a nickname, don't you?

A. Yes, sir. Rooster.

Q. Okay. If some of the other people referred to Rooster, the jury wouldn't know who that was if they -- now, during -- you were Mike's supervisor up at the northside precinct; is that correct?

A. Yes, sir.

Q. How long were you his supervisor?

A. How long have I been a supervisor?

Q. How long were you his supervisor?

A. Several years. The majority of the time he's been here.

Q. And during that time, did you have a chance to observe his work as a police officer?

A. Yes.

Q. And can you tell the jury what kind of work he did as a police officer?

A. I considered his work very good.

Q. Was he assigned to a specific area?

A. He was assigned to Zone 332, and that basically was the in-town area of Buford.

[Defendant's exhibit was marked for identification by the court reporter.]

MR. MOORE: Your Honor, I've had marked Defendant's Exhibit Number 48. It's a Gwinnett County police department precinct map. Mr. Porter, is there any objection to this being tendered?

MR. PORTER: For the record only, Your Honor. I believe it falls under the same rule as demonstrative evidence.

THE COURT: Any objection to it being used during the course of examination?

MR. PORTER: No, Your Honor.

THE COURT: All right.

MR. PORTER: I can move that equipment if Mr. Moore wants to use the easel.

BY MR. MOORE:

Q. Sergeant Stone, can I get you to come down off the stand?

A. Yes, sir. [Stepping down]

Q. There's a pointer here where -- if you can stand to the side so we won't block the jury's view. Could you point out the precinct that Mike worked under your supervision?

A. Yes, sir. That should be it there, right here where the star is. That area right there.

Q. And that's the City of Buford?

A. Yes.

Q. And where did the other officers that work for you work on the night shift? Which zones did they work?

A. The zones we covered would be 321, 341, 311, and 312.

Q. Okay. And who worked -- do you remember who worked which ones back at that time?

A. Officer Reddy was working Zone 321 and Chapel was working 332. I would have to look at the daily duty roster and -- I don't recall who was in that --

Q. Did you have a zone assigned or did you just patrol the entire area?

A. I had everything -- and this would be District 3. That was all the way from 85 west to Rest Haven to the Fulton County line to Pleasant Hill Road. It should be right in this area here.

Q. Now, were these zones strictly adhered to or was it common for officers to go into another zone and take a call?

A. Yes, it would. If an officer was working this area here [indicating] and this call was busy, the radio would dispatch the one that's closest that was not busy to handle that call.

Q. So they all kind of worked the whole area really?

A. Yes, sir.

Q. Okay. Thank you, sir.

[The witness returned to the stand.]

BY MR. MOORE:

Q. Now, during the time that Mike Chapel worked for you up there, do you now how many letters of commendation he received?

A. Not the exact amount, but it would be quite a few.

Q. Would it be around twenty-five or twenty-six?

A. Probably so, yes, sir.

Q. Okay. And did you get copies of those letters as a supervisor?

A. Most of the time, yes, sir. We'd put them in his personnel file.

Q. Okay. Now, on the particular occasion that Mr. Porter's talking about on April 15 -- excuse me, I've got the date wrong, April 3, when Mike went out to Ms. Thompson's house, do you recall that incident?

A. I don't recall the exact call. I remember the conversation he had with me --

Q. Okay.

A. -- later on in the shift about that call.

Q. Okay. Did you think there was anything unusual about what he told you about the call?

A. It would be unusual that a burglar would enter a residence and take money and leave half of it there. I believe a burglar, if he was going to take the money, he'd take the entire amount and not leave half of it and take half of it.

Q. Okay. And you've worked for a long time as a uniform police officer; is that correct?

A. Yes, sir. Twenty-one years.

Q. Twenty-one years. And you've worked a lot of burglaries, I imagine, during that time?

A. Yes, sir.

Q. Okay. And based on that, you're basing your opinion that a burglar wouldn't take just half the money, on those twenty-one years of experience; is that correct?

A. That's correct, sir.

Q. Okay. Have you ever had another case where a burglar took half of the money out of an envelope and left half of it?

A. No, sir. I have not.

Q. Now, based on what Officer Reddy told -- I mean Officer -- excuse me, Officer Chapel, was there anything unusual about him not writing a report about something like that?

A. No, sir. He would try to do what a victim would request him to do. If they didn't want a report, he would tell them that -- it's been my experience that he would tell them he would write one if they wanted one.

Q. Okay. And if nobody was going to be arrested and nobody prosecuted, there was really no reason for a report, is there?

A. No, sir.

Q. Now, all of the Gwinnett County uniform officers have the right to take their cars home, don't they?

A. Yes, sir. If they live inside the county.

Q. Okay. And they -- they're in uniform when they drive them?

A. Yes, sir. If they're not a detective or if they was in uniform, they'd -- they'd drive.

Q. Right. If they're a uniform officer. Now, the car that was issued to Mike, was that issued in 1992 or 1993 or do you know?

A. They was '92 cars. I wouldn't -- I would say it would be in '92 when they was issued.

Q. Okay. So it was a 1992 model Ford?

A. Yes.

Q. Okay. You don't -- what you're telling me, I think, is you don't remember the exact time it was issued to him in 1992?

A. No, sir, I don't.

Q. Okay. Now, the spare car is there at the precinct or is there a spare car there in 1993?

A. Yes, sir, there would have been spare cars there.

Q. Okay. Do you recall what kind of spare car you had at the precincts in 1993?

A. No, sir, I'm sorry, I don't.

Q. Would it have been an old car usually that was about worn out, they were keeping around just as a spare when somebody's car broke down?

A. Yes, sir. They would have been older cars. It would either have been a Ford or a Chevrolet. That's what was issued.

Q. Do you know what kind of spare car is up there now at the northside precinct?

A. No. I hadn't been at that precinct in a couple of years.

Q. Okay. You don't work up there anymore?

A. No, sir.

Q. Now, during this investigation, when it was taking place, you had occasion to speak to Chief White about Mike telling you about the burglary, didn't you?

A. Yes.

Q. And what did you tell Chief White?

A. I told Chief White basically what I said here.

Q. Now, how many people did you supervise, Sergeant Stone?

A. On a daily basis, between four and five, depending on how many we had and how many called in sick, how many was on annual leave.

Q. Okay. And how many were working that night?

A. As I recall, there would be four.

Q. On the night of April 15 when I say that night.

A. Yes.

Q. Okay. And that -- would that include you four or would it be five including you?

A. That would be five including me. I don't recall if -- like I said, I'd have to see the roster to see if there was any other supervisor working that night.

Q. Okay. Now, you became aware, I believe, from Sergeant Latty that a Gwinnett County police car had been seen down at the Gwinnco Muffler place early on, didn't you?

A. Yes. They had a road check down there to gain information.

Q. Okay. And I believe you've made an announcement to your group of people that you've supervised to ask if anybody made any traffic stops down there.

A. Yes.

Q. Okay. Now, other than that, other than asking if there was any traffic stops or anything, prior to the night of April 22 and 23, 1993, when Mike was arrested, do you know whether or not anybody that worked for you was interviewed as to what they were doing or their whereabouts on the night of April 15?

A. No. Other than the night that Officer Chapel was arrested.

Q. Okay. So they came out and did the interviews after Officer Chapel was arrested?

A. I believe it was that same night. It would have probably been prior to the arrest.

Q. Do you know what time of night they started doing the interviews with anybody?

A. It was after we got off the shift. It would have been after eleven o'clock.

Q. After what?

A. After eleven o'clock.

Q. After eleven o'clock at night?

A. Yes.

Q. Okay. And did they go to people's houses to interview them?

A. I understand they went to Officer Reddy's residence.

Q. And did they come and interview you that night also?

A. Yes.

Q. Okay.

A. It was at the precinct.

Q. I'm going to show you, Sergeant Stone, what's been marked as Defendant's Exhibit Number 2. It's a group of different law enforcement cars. Do you see a car on there like Mike Chapel drove?

A. Yes.

Q. Okay. And which one is it?

A. The new car that was issued to him, Unit 197, was -- it would be like photograph Number 3 and Number 8, Number 11, Number 10 and 7, but not in that color.

Q. Okay. Which one is in the right color of those you mentioned for Mike's car?

A. Number 3, Number 11, and Number 8, the color.

Q. Okay. And is there any one of those that are the same type of car that you can tell is the same type of car exactly that Mike drove?

A. Those I just stated are Fords.

Q. They're all Fords; right?

A. Yes. And they would be the same description as Unit 197 that was issued to him.

Q. Okay. Is there any of them on there that would look like the car that would have been the spare car at the precinct back in 1993?

A. Yes. Number 12 and Number 6. Twelve is a Chevrolet and 6 is a Ford.

Q. Okay. And Number 6, a Ford, is one of the old yellow painted cars with a yellow stripe; is that right?

A. Yes, sir, it is.

Q. And Number 6 -- I mean, Number 12 is what?

A. A Chevrolet.

Q. And it's painted with the blue; right?

A. With the blue, yes, sir.

Q. Blue and white. I mean, it's white with a blue stripe?

A. Yes, sir.

Q. Sergeant Stone, I issued a subpoena to the Gwinnett County police department for the ID photographs of all the officers assigned to the Buford precinct on April 15, 1993, for their photographs.

A. Yes, sir.

Q. Pursuant to that, Mr. Danny Porter, the district attorney, delivered to me a series of photographs that -- from the police department and they're numbered on the back D-14 through D-44, and I'm going to ask you to look at these pictures and see if you recognize those people. And if you would, identify each one by the number on the back. If you could identify each officer.

A. D-44 would be Officer Yeager, D-43 would be Officer Hughy, D-42 would be Sergeant Tim Hunter, D-41 would be Officer Mornings, D-40 would be Officer Bridgefarmer, D-39 would be Sergeant Tyson, D-38 would be Corporal Stratameyer, D-37 would be Officer Jack Garner, D-36 would be Lieutenant Greenwood, D-35 would be Corporal Wilhoit, D-34 would be Corporal Byers, D-33 would be Officer Rosa, D-32 would be Sergeant Winderweedle, D-31 would be officer J. P. Morgan, D-30 would be Officer Danny Burke, D-29 would be Officer Geidner, D-38 would be Sergeant Edmunds.

THE COURT: That's 28?

THE WITNESS: D-28.

THE COURT: Okay.

BY MR. MOORE:

A. [Continuing] D-27 would be Lieutenant Morgan, D-25 would be -- D-25 would be Officer Drake, D-26 would be Officer Reddy, D-24 would be Officer Yonker, D-23 would be Officer Zimmerman, D-22 would be Officer Pusbach, D-21 Officer Awtry, D-20 would be Sergeant Shell, D-19 is Officer Martin, D-18 is Lieutenant Knight, D-17 is myself, D-16 is Officer Evans, D-15 is Sergeant Staunton, D-14 -- and I don't recognize D-14.

Q. Even though you don't recognize the name, do you recognize the face?

A. Yes.

Q. Okay.

A. I don't recall his name.

Q. Okay. That's fine. Well, you did very well, I think, to remember all you did. Now, those pictures, D-14 through D- -- was D-44 the last one?

MS. ROGAN: Uh-huh.

BY MR. MOORE:

Q. Okay. D-44 -- were those the officers that worked the northside precinct during April 1993?

A. Yes, sir. It appears to be so.

Q. Okay. And you knew all of them personally, and even though you didn't know the name of one of them, you knew that officer by his face and everything?

A. Yes.

MR. MOORE: Your Honor, at this time, we would tender Defendant's Exhibit Number 14 through Defendant's Exhibit Number 44.

THE COURT: Mr. Porter?

MR. PORTER: Your Honor, no objection to their admission. I cannot state whether I believe they are for the record or to go out with the jury. Your Honor, I'd reserve some argument on that, but as I understand it, we're returning to other exhibits in any event.

THE COURT: Mr. Moore?

MR. PORTER: I have no objection to his use or publication of them in front of the jury or anything else, but I'm not sure that they're not demonstrative evidence that should not go out with the jury.

MR. MOORE: Your Honor, I think my photographs are just like Mr. Porter's photographs. They're to go out with the jury. They're --

THE COURT: I think if they're admissible, they're admissible. I mean, I don't think they're transcripts, I don't think they're depositions, I don't think they're statements. I mean, it seems to me either they're in or out.

MR. PORTER: Your Honor, in that case, we have no objection to their admission.

THE COURT: All right. And that's Defendant's -- which exhibits are they? That's Defendant's 13 --

MR. MOORE: Defendant's 14 through 44, Your Honor.

THE COURT: Okay. Wait just a moment, Mr. Moore.

BY MR. MOORE:

Q. Now, Sergeant Stone --

THE COURT: Just a moment, Mr. Moore.

MR. MOORE: Oh, I'm sorry. I'm sorry, Your Honor.

THE COURT: Let me make sure my notes are right. And that was through 44; is that correct?

MR. MOORE: Yes, Your Honor.

THE COURT: All right. So Defendant's 14 through 44, the photographs, are admitted without objection. Go ahead, please.

BY MR. MOORE:

Q. Now, I realize it's been a couple of years ago, but do those photographs accurately represent the way the officers looked two years ago?

A. Yes, sir. To the best of my knowledge, it would be.

Q. There's been no significant changes in their appearance or anything?

A. No, sir.

Q. Now, would you -- you've been trained as a police officer to observe people's height, weight, physical characteristics, and that kind of thing?

A. Yes, sir.

Q. Would you describe Mike Chapel's height and weight and physical characteristics back in 1993?

A. Approximately six-six, 240, I would say. 235. He worked out in his gym quite heavy.

Q. And I'm going to ask Mr. Chapel if he'd stand up.

[The defendant standing]

BY MR. MOORE:

Q. Has there been any change in Mr. Chapel's appearance since 1993?

A. Not that I can see, no, sir.

Q. Okay. Now, I believe in regard to the call to Ms. Thompson's place, you at some point suggested that Mike ought to write a report just to be -- just to be careful; is that correct?

A. Yes, sir.

Q. Okay. And he never did get around to doing that, did he?

A. No, he didn't.

Q. As a supervisor -- you've been a supervisor how long now?

A. Fourteen years, I believe.

Q. Okay. Even with your good police officers, is that a problem getting them to do the paperwork?

A. It can be, yes, sir.

Q. It's not an unusual problem you have to deal with, is it?

A. No, it's not.

Q. Okay. And you testified that Mike was a good police officer. Was he good about his paperwork?

A. As good as any other officers. If he told me he was going to write a report later on, if information came in on a report, I believe he would do that, yes.

Q. Okay. Now, we've got a drawing here that was done by Officer Winderweedle. If you could come over here and look at it.

[The witness stepped down from the stand.]

BY MR. MOORE:

Q. This is a drawing he did of the northside precinct and this was the back of it, as he testified, where you go out to the parking lot. And this would be the captain's office and this would be uniform assembly, and then this, I guess, was the front door. Does that look familiar to you?

A. Yeah. I believe that's correct.

Q. Okay. And where is the parking lot where the cars are kept?

A. It would be in this area back here.

Q. Okay.

A. This would be the clerk's office through the front. Georgia 13 and Buford Highway would be here. This is the back parking lot.

Q. Okay. And the parking lot is where the spare car was kept; is that correct?

A. Yes, sir.

Q. Okay. Now, where were the keys for that car kept if anybody needed it?

A. It would be in one of the lieutenant's offices.

Q. Okay. And can you show us there where that would have been?

A. It would have been either in one of these offices here.

Q. Okay. And how did somebody get access to them if they needed the keys?

A. If the doors were locked, they would have to call the supervisor and have him open it up.

Q. Okay. Were the doors locked all the time or were they --

A. No, they wasn't.

Q. Okay. You can go back up to the stand.

[The witness stepped to the stand.]

BY MR. MOORE:

Q. Was anybody on duty there at night besides the clerk in the precinct?

A. Not in the precinct in general, no.

Q. I mean, there might be people coming and going, but there's nobody assigned there at the precinct?

A. They come -- yes.

Q. Are you familiar with what's called a Code 32?

A. Yes.

Q. And what does that mean?

A. That means there's no report requested.

Q. Do you recall a case that Mike worked with a Marsha Smith?

A. Marsha Smith?

Q. It involved some jewelry that a juvenile had taken.

A. Not right off, no.

Q. Okay.

A. It's been quite a while.

Q. Do you ever remember going with him up to a victim's residence up at Peachtree Village Mobile Home Park on Peachtree Industrial Boulevard?

A. I've been there on several calls. I mean, I'd have to know exactly which one you're referring to.

Q. This was a case where --

MR. PORTER: Your Honor, I'm going to object. Mr. Moore can refresh the officer's memory through the appropriate documents, but not through his own questions.

MR. MOORE: Your Honor --

MR. PORTER: The officer's testified he doesn't recall it.

MR. MOORE: Your Honor, I think I can attempt to refresh his memory through bringing attention to the details of the incident, too. If he does remember --

MR. PORTER: Your Honor, that's not the proper way to do it, and then Mr. Moore has testified before this jury. The proper way is to bring the documents or the report to the officer's attention, have him read them and have his memory refreshed.

THE COURT: Would you approach the bench, please?

[Counsel approached the bench and the following conference ensued outside hearing of the jury.]

THE COURT: Where are we going? What's the --

MR. MOORE: He went out there on a burglary call where Mike bluffed this juvenile into -- like he tried to do here -- into giving back the money or jewelry that had been taken.

MR. PORTER: There's a report on it, too.

MR. MOORE: Well, Your Honor, a report's not the only way you can refresh somebody's memory.

MR. PORTER: But you can't do it through asking him the question by saying, 'Don't you remember it happened this way?' That puts testimony in front of the jury.

MR. MOORE: Your Honor, I think that's exactly how you do it, tell them the details of the incident and ask them if they remember it.

MR. PORTER: But not when there's a report available that can refresh his memory and have him testify if his memory is refreshed.

MR. MOORE: Mr. Porter can bring in the report if he wants to. I mean --

MR. PORTER: Your Honor, I'm not getting any notice of what they're calling. This is -- Mr. Moore has him on cross-examination. This is a fact he wants to prove. All I'm asking is that he be required to abide by the rules of evidence even though he's on cross- examination.

THE COURT: Well, what do you want to do?

MR. MOORE: Well, if he remembers it, Your Honor, I want to ask him about how --

THE COURT: What do you want to ask him? What do you want to --

MR. MOORE: Whether he bluffed that juvenile into turning over the jewelry and his follow-up with the parent.

MR. PORTER: I don't have any objection to a question that says do you remember a case where he bluffed a juvenile into returning money or jewelry or whatever it is. But to sit there and say, 'Do you remember the Marsha Smith case where y'all drove up to North Peachtree and then Mike bluffed this juvenile?'

MR. MOORE: Your Honor, I --

MR. PORTER: I think it's improper trying to refresh the witness's memory.

MR. MOORE: Your Honor, I've got him on cross- examination. I understand Mr. Porter's restricted on direct and he can't ask these kind of questions, but on cross I believe you can.

MR. PORTER: Your Honor, Mr. Moore's restricted by the rules of evidence just like I am, whether he's on cross or direct. I mean, he's trying for memory refreshed, the past recollection recorded. He's trying to refresh the witness's memory, the memory of the witness that says he has no memory of the incident.

MS. ROGAN: Well, he might have a memory. He just --

MR. MOORE: He said he didn't remember a name.

MS. ROGAN: He needed to have his memory jogged a little. He needed some more details.

THE COURT: I'll allow the question in the form you said you were going to ask it about if he remembered going out and bluffing a juvenile. Do you have any objection to that?

MR. PORTER: I don't have any objection to that question, Your Honor.

THE COURT: I'll allow that.

MR. MOORE: Okay.

THE COURT: Okay. Go ahead, please.

[Bench conference concluded.]

THE COURT: Go ahead, please.

BY MR. MOORE:

Q. Sergeant Stone, I realize this was a long time ago, and I'm asking you to search your memory for something, but do you remember an incident where you and Mike Chapel went out on a report to the village, Peachtree Village Mobile Home Park, on Peachtree Industrial Boulevard, and there was a juvenile that had taken some jewelry there, and Mr. Chapel bluffed the juvenile into getting the jewelry and giving it back. Do you recall an incident like that?

A. Vaguely. I -- that would be a tactic he would use, yes.

Q. You've seen him do that before?

A. Yes.

Q. Okay. Was he successful at it very often?

A. Most of the time he was, yes.

Q. Is that an appropriate tactic for a police officer to use?

A. Yes, I believe so.

Q. In those cases, you remember that he recovered the property; is that correct?

A. I vaguely remember it. Like I said, it's been quite some time ago and --

Q. Well, you said other cases that was his tactics, I mean --

A. Yes.

Q. Has it worked in other cases for him?

A. Yes.

Q. Do you remember cases where it has worked for him?

A. Not specifically, but that would be -- I've seen him use that tactic before.

Q. Now, do you know, of your own knowledge, what Officer Chapel's habits were as far as running tag numbers of vehicles?

A. He usually runs tag numbers on most all people that he had contact with on calls and such as that. In his patrol activity that would be suspicious, he would run a tag.

Q. Okay. So he was one of those officers that just routinely ran tag numbers?

A. Yes. I've seen him do it many times.

Q. Some people do it, some people don't, but he was one of the ones that did?

A. Yes.

Q. Now, you were working with Officer Chapel on the night of the 15th; is that correct?

A. Yes.

Q. You spent time there with him at the fire station; is that correct?

A. Yes.

Q. What was his demeanor that night at the fire station? How was he acting?

A. He was just everyday -- same officer as he was. There was no change. He didn't show any concern or being upset.

Q. Okay. Now, was anything different on that night than it had been on the other nights before the 15th?

A. In his manner?

Q. Yes, sir.

A. No.

Q. Now, did you see him that night later when the paperwork was being turned in when his shift was over?

A. Yes.

Q. Okay. And what was his demeanor then?

A. It was the same as he was on any other night. He was joking with the officers as is a usual habit of his and other officers.

Q. Okay. And what time would that have been when he was turning in his paperwork?

A. That would have been in an area from basically ten minutes till eleven to fifteen after eleven.

Q. Okay. This would have been after everybody had finished their work for the night and they were getting ready to go home; is that --

A. Yes. Finished their paperwork and ready to go home.

Q. Okay. Now, at the fire station, do you remember precisely what time that Mike left there?

A. As I said, the best I recall it was in the area between twenty after nine and 9:30.

Q. Okay. Do you remember when you gave a statement back at the time to Sergeant -- I'm sorry, that's your signature. It was Chief White took a statement from you back at that time?

A. Yes.

Q. Okay. And do you recall telling him that you left about twenty minutes after Chapel left?

A. Yes.

Q. Okay. And it was after ten p.m. when you left?

A. Not necessarily. I don't -- I believe it -- it would have to been somewhere between ten till when I left.

Q. Okay. Let me get this marked. I'm not trying to trick you.

[Defendant's exhibit was marked for identification by the court reporter.]

BY MR. MOORE:

Q. These pages aren't numbered, but I'm going to turn it to a page here and get you to look at it. Well, first of all, look at the front and see if you can identify it. If you would, keep the page there. Can you identify that document?

THE COURT: What is the number of it, Mr. Moore? What exhibit number?

THE WITNESS: D-49.

MR. MOORE: D-49, Your Honor.

THE COURT: Okay.

BY MR. MOORE:

A. [Continuing] Yes. This is -- appears to be a statement that I give to Chief White the night Officer Chapel was arrested. It has my initials on it. There it is. That's what I was looking for.

Q. Okay. The pages aren't numbered, but if you'd turn to that page where I had it turned to there. Yeah, that one right there. Down about midway of the page.

A. Yes.

Q. And have you had a chance to look at it?

A. Yes.

Q. Okay. And after looking at that, does that refresh your memory any?

A. Well, I'd have to restart from the first and read all the way through, but basically, yes.

Q. Well, if you'd like to read the whole thing, you can. I mean, I'm not trying to trick you.

A. No. This will be fine.

Q. Okay. You said there that you left about ten; is that correct?

A. About ten.

Q. You left about -- excuse me, I'm sorry.

A. Between ten till and ten o'clock.

Q. Okay. But it says ten in that statement that Chief White wrote down, doesn't it?

A. Yes.

Q. And you said that Mike left about twenty minutes before you did?

A. Yes.

Q. So that would put him leaving around 9:40?

A. Yes. Basically, yes.

Q. Okay. And so there's a period of time in there when you're not exactly sure of whether Mike left at, like you said earlier, 9:30 or 9:40 or maybe even 9:45?

A. Now, as I recall, he usually closed his gym around 9:30. And as I recall, it was between twenty after and 9:30 that he got up and left and said he was going to go check the gym and make sure the doors was locked.

Q. Okay. Was there anything unusual about that?

A. No. That would be the time he usually had checked and locked his gym.

Q. Was there a movie on that night or something on TV that y'all were watching?

A. There may have been when we first arrived at the fire station, but we told the firemen of the impending weather, and we did watch a channel that was -- it was not a movie channel, but it would break in by the National Weather Service, and one of the TV stations in Atlanta, it would show on the radar and the weather as it was moving towards Buford.

Q. Okay. And what was the weather like that night?

A. It was heavy rain, thundering and lightning --

Q. Okay. Did it rain --

A. -- heavy winds.

Q. Was it raining down in the City of Buford also?

A. Yes, quite a bit.

Q. Okay. How far is the precinct from the intersection of 20 -- Georgia -- I think it's Georgia 20 and Peachtree Industrial Boulevard? You know the intersection I'm talking about where 20 crosses Peachtree Industrial Boulevard?

A. Yes. I'm -- not exactly. I'd say it was a mile and a quarter probably, basically.

Q. So if there was heavy rains that night, it's probably raining there at that intersection as well as if it rained at the precinct?

A. Yes, sir. I'd say so.

Q. Okay. Now, there's been some talk in this case about Mike getting his car washed. Do you remember the day before this happened, April 14, telling Mike that Captain Cantrell was going to ride with him and he needed to get his car cleaned up?

A. Yes.

Q. Did you tell him that?

A. Yes.

Q. Okay. And was Mike always sloppy with his car as far as the way he kept it up and everything?

A. He tried to keep that new car clean since his car prior to that was pretty much a disaster.

Q. Okay.

A. But he'd had it quite some time.

Q. Okay. I'm talking about the interior, the way he kept everything in there. Was it something where he needed to get it cleaned up when a senior officer is going to look at it? I mean, get all of his stuff in order and have it neatly --

A. Yes, it would.

Q. Okay. And you wanted him to do that, too, since he was working for you?

A. Yes. Yes.

Q. Because it reflects on you if he goes down there and he's got everything sloppy and --

A. That's correct.

Q. -- not doing his job. Is there anything unusual for a police officer to get his car washed?

A. No. They're required to keep them washed and cleaned.

Q. How often is it you generally get one washed? I know it depends on the weather if it's raining and --

A. It -- yeah. On the weather. I would say weekly would be a good measure.

Q. Okay. And do you remember whether or not Mike had had a call where he had mud and everything in his car before that time when you told him to get it cleaned up?

A. No, I don't recall.

Q. Okay.

A. Not that one.

Q. Did you see anything in his car that caused you to tell him to get it cleaned up?

A. No. Basically, he did his best to keep that car clean and squared away.

Q. Now, a patrolman like Mike was up there in the precinct and everything, or I suppose any patrolman, his car is like his office. That's where he keeps all of his notes and records and stuff, what he's working on and everything; is that correct?

A. Yes. Yes, it is.

Q. Okay. And that's where Mike kept all of his notes and his briefcase and anything he might have been working on and that sort of stuff?

A. Yes.

Q. Okay. And anything he might have been investigating, various notes about people or tag numbers, that sort of thing?

A. Yes, he would.

Q. Is there anything unusual about that for a patrolman to do that?

A. No.

Q. In fact, he doesn't have a desk or anything at the precinct to keep them in, does he?

A. No, he does not.

Q. His locker would be the only other place to keep them besides his patrol car, wouldn't it?

A. Yes.

Q. Now, do you ever recall Mike making any complaints regarding Officer J. P. Morgan about intelligence or anything?

A. Not that I recall, no.

Q. Now, Mike's log sheet, I believe the DA showed you, was not correct that night; is that correct?

A. No, it's not. Not exactly, no.

Q. Okay. And that's not very unusual either, is it, for an officer, that his log sheet not be correct because they -- tell me if I'm correct, that they go and do their job and at the end of the shift, they sit down and fill out their log sheets, what they did for the day?

A. Basically, yes. I always made a practice to do it each -- after each call, but a lot of officers try to do it at the end of their shift off their notes from their note pad.

Q. But even when you try to do it each call, sometimes people make mistakes, don't they?

A. If the calls was coming hot and heavy, yes, you could miss one.

Q. Okay. And, in fact, your log sheet that particular night showed you weren't at the fire house when, in fact, you were at the fire house, didn't it?

A. Yeah, that's correct.

Q. And you made a mistake on yours that night, too?

A. Yes.

Q. Okay.

MR. MOORE: That's all I have for Sergeant Stone.

THE COURT: Redirect?

MR. PORTER: Yes, Your Honor.

REDIRECT EXAMINATION

BY MR. PORTER:

Q. Sergeant Stone, I'd like to call your attention, and this is something that I neglected to ask you, about -- to April 4, 1993. Can you look at State's Exhibit Number 74. Have you ever seen that before?

A. Yes.

Q. Could you describe the circumstances under which you've seen that -- that note?

A. This was -- appears to be a note -- a Post-It -- excuse me, a Post-It note left on the telephone in my office, in the lieutenant's office we used, for Officer Chapel to call Emogene Thompson and a phone number. It has Sergeant Winderweedle's initials, the date, and the time the message come in.

Q. All right. Did you take possession of that note at any time?

A. It was -- as I recall, it was taped or stuck to the telephone on the desk.

Q. And what did you do with it once you got it?

A. I -- when I came in for work, I would -- that day, I give this message to Officer Chapel to call this lady.

Q. What, if anything, did he do with it when he received it from you?

A. I was filling out the daily roster that day. Officer Chapel, after getting this, turned and left out of the office and I assume he called. We have a telephone with lights on it. When someone picks up a receiver, a light would come on. And I assume he did call this lady.

Q. All right. Now -- I'm sorry, go ahead.

A. Although, I didn't see it, I assume he did.

Q. So you don't know whether he talked to her or not?

A. No, not exactly, no.

Q. Now, that note was returned the day after the discussion you had with Mr. Chapel about the theft report that had come the day before; is that correct?

A. This came into the precinct, yes.

Q. Now, on the night of April 3, when you and Chapel discussed the theft call at Emogene Thompson's, did you recommend at that time that he write a report on the incident?

A. I said he should write a report. It would be best to, but since I trusted Chapel and he had always wrote reports before that I'm aware of, he didn't write one that time. But I trusted him to do so if more information came in.

Q. All right. On April 4, when you received the message, did you have any comment on whether he should write a report since there had been contact from the victim?

A. No, I didn't.

Q. In your experience as a police officer, if you had received contact from a victim the day after a theft, would you feel it important to write a report?

A. Yes, he should have wrote a report. It depends on if the lady requested, what information he got from her. But if -- as information keeps coming in on a case, it's best to write a report, and I would have.

Q. And why is that, Sergeant Stone?

A. So he can keep a detailed track of information of burglaries and calls.

Q. Now, the only information you received about Ms. Thompson's desire to write a -- to issue a police report, where did that come from?

A. To --

Q. Well, let me rephrase my question.

A. Yes.

Q. Who told you that Emogene Thompson didn't want a police report on her theft?

A. Officer Chapel.

Q. And who told you that he had returned the telephone call of April 4?

A. He did.

Q. Do you have any personal knowledge of that?

A. No.

Q. When an officer calls in a signal 32 or a Code 32, which is no report requested --

A. Yes.

Q. -- who calls that into the radio?

A. The officer does.

Q. So if a Code 32 was called in on Emogene Thompson's theft call, who called it in --

A. Officer --

Q. -- if he responded?

A. Officer Chapel.

Q. Does anybody go behind officers and check with the victims to see if they really did want a report and the officer didn't write it?

A. Not that I'm aware of, no.

Q. Let me also show you what you've been shown as Defense Exhibit Number 2. And you stated that there were actually three cars on here that were similar to the vehicle being operated by Officer Chapel in April 1993?

A. I said 3, 11, 8, I also referred to 10 and 7, which were a sheriff's car and a trooper car, and I believe 2 would be with -- it's similar in design and shape. It's a sheriff's car.

Q. Any others off the list? And take into account color and stripes.

A. The 8 car, Suwanee car, I referred to it. It was similar in design to the car we operate.

Q. Okay. Sergeant Stone, how long have you been with the police department?

A. Twenty-one years.

Q. Thank you. Sergeant Stone, in your statement to Chief White, do you recall the date of that statement? You can look on the statement. Do you recall when you talked to Chief White?

A. It was end of shift. This is dated 4/23/93. The statement begins at 2300 hours.

Q. So it was not within a day or two after April 15?

A. No. It's quite some time afterwards.

Q. And up until the arrest of Mike Chapel, was there anything significant in your mind about April 15?

A. April 15 was tax day, yes, and --

Q. But other than that -- other than that the government was coming for you, was there anything significant that would make you remember in any significant way that day?

A. In the weather that we was pending to deal with, yes. That would be the only thing.

Q. Was there anything about the time that Mike Chapel left the precinct that would have called your attention from any other normal time that he left?

A. No.

Q. Thank you.

MR. PORTER: That's all the questions I have.

THE COURT: Recross?

RECROSS EXAMINATION

BY MR. MOORE:

Q. Let me see if I've got these documents that you've got. I don't know which ones you've got and which ones you don't have. This -- what's been marked as Defendant's Exhibit -- I mean, State's Exhibit Number 74 --

A. Yes.

Q. -- that's a note where, I believe, Officer Winderweedle took -- that Sergeant Winderweedle took that down; is that right?

A. Yes.

Q. Okay. And he gave that to you?

A. No. It was on a Post-It note posted and stuck to the telephone in our office.

Q. Okay. Is it a fair conclusion to infer from that that Sergeant Winderweedle talked to Ms. Thompson?

A. Yes, sir.

Q. So if Ms. Thompson had any complaints about what Mike Chapel was doing, about writing a report or anything like that, she could have told Sergeant Winderweedle, couldn't she?

A. Yes.

Q. Now, switching gears here, sort of, going back to October 1992, do you recall an incident where Mike Chapel broke the window of a car out with his hand?

A. Yes, I do.

Q. Do you recall that incident?

A. Yes.

Q. Okay. And tell us what you know about it, what happened.

A. We had a call of a individual that was at the football game in Buford on Stoney Avenue that was causing some problems. The city marshal had called for assistance up there to deal with this individual. He -- and in the meantime, responding to that call, the person left the area. The marshal gave out a lookout and Officer Chapel fell in behind this vehicle and was attempting to stop the vehicle traveling through town.

Q. Okay. And what happened after he got him stopped?

A. He stopped him in a housing project on Garnett Street. The individual was attempting to reach for what appeared to be a weapon. As it turned out later, it was just some pipes put together, but as this individual reached for the weapon, Officer Chapel ran his hand through the window of the patrol car where he could take hold of that driver of that car.

Q. Okay. When you said ran his hand through, was that an open window or a closed window?

A. No, it was closed.

Q. So he broke the window out with his fist?

A. Yes.

Q. How much force does it take to break a car window out like that?

A. Quite a bit.

Q. Okay. Did he hurt his hand?

A. Yes. He cut his knuckle.

Q. Okay. Was it bleeding?

A. Yes.

Q. How much blood was there?

A. There was a significant amount of blood. It was running down his hand and his fingers.

Q. Okay. And do you know whether or not he got blood in his patrol car from that?

A. If his finger was bleeding and he stepped down in his car, there would have been blood in there, yes, sir.

THE COURT: What was the date?

MR. MOORE: It was October 1992, I believe, wasn't it?

THE WITNESS: Yes. It was during the football season. It could be October or November for football to be going. That was when it would be.

BY MR. MOORE:

Q. Okay. Now, you said this person in the car that wouldn't -- that had the window up appeared to be reaching for a weapon?

A. Yes.

Q. And in a situation like that, would an officer be authorized to use deadly force to protect himself?

A. If an officer believed that that was a weapon he was reaching for and he was going to use it on him, it could be, yes.

Q. Okay. So that's a judgment call by the officer?

A. Yes.

Q. And if he believed it was a deadly weapon, he'd be authorized to use his service weapon to protect himself?

A. Yes.

Q. Okay.

A. If he perceived to be endangered by a weapon, yes.

Q. Okay. Now, getting to the keys to the car up there, you and the people who work for you, because of people locking themselves out, did y'all have keys to each other's cars?

A. Not on a regular basis. There were several of the patrol cars that was issued to us that some keys would interact with the other cars.

Q. Okay. Were there extra sets of keys up at the precinct in case anybody did lock themselves out?

A. No. Not an extra set to every patrol car, no.

Q. Sergeant Stone, the DA's asking you about him not writing a report like that's some really big thing. Is it unusual that the victim, if it's a family member who's the suspect and they don't want to prosecute, for the police not to write a report?

A. I would say no, it wouldn't be unusual. A lot of family members don't want to get their other family members in trouble in dealing with the police department.

Q. Is that unusual in your experience as a police officer, when you go out and the prime suspect is a family member that they suddenly don't want to prosecute, they don't want anything done about it?

A. That's not unusual at all.

Q. Okay. Is it fair to say that a lot of times people just don't believe that it's a family member, but when you point out to them objectively it is, then they don't want you to do anything about it?

A. That's correct.

Q. Thank you.

MR. MOORE: That's all I have.

THE COURT: Any other question, Mr. Porter?

MR. PORTER: No redirect, Your Honor.

THE COURT: Do you want this witness on call?

MR. PORTER: Your Honor, I believe he's on call. I believe Sergeant Stone works the morning watch, and so we'd ask that he be allowed to go home until the time of any recall, and I believe he worked last night.

THE COURT: All right. You can come down. You'll be subject to being recalled.

THE WITNESS: Yes, sir.

[The witness stepped down from the stand.]

MR. MOORE: Your Honor, we'll cooperate with him working the morning watch and try to call him when he's not sleeping if we need him.

THE COURT: All right. Would you approach the bench, please.

[Counsel approached the bench and the following conference ensued outside hearing of the jury.]

THE COURT: Let's see. Hearsay is coming next?

MR. PORTER: Yes, sir.

THE COURT: How long do you need for lunch?

MR. PORTER: Well, Your Honor, I mean, we'd like to eat.

MS. ROGAN: Our problem here is as soon as they take the jury down, they're going to close the cafeteria, so we're kind of stuck. We have to wait. We waited twenty-five minutes yesterday to get in.

THE COURT: All right. Okay. How long do you think it would take to put up the witnesses -- that ought to be fairly short.

MR. DAVIS: Direct examination won't take very long for us.

THE COURT: But I mean, as far as sorting it out, about fifteen minutes? I tell you what I think I'd like to do. Let's take -- I'm going to send the jury to lunch. Let's take five minutes. And then bring your witnesses up and then let's go ahead and take care of that and then we'll take a lunch recess and be ready when the jurors come back.

MR. PORTER: It makes sense.

MS. ROGAN: Okay.

THE COURT: And we'll take an hour and fifteen minutes and that ought to give us time.

MR. MOORE: And then the jury will be through the line by the time we get down there.

MS. ROGAN: That makes sense. Yes.

THE COURT: Okay.

MS. ROGAN: We're going to take a break ourselves, though?

THE COURT: Five minutes.

MS. ROGAN: Okay.

[Bench conference concluded.]

THE COURT: Ready for lunch? We're at a good breaking point. We'll pause here for lunch. We have some matters we're going to take up briefly during the course of lunch and -- so we can get ready to recommence with the evidence.

So I'm going to give you an hour and fifteen minutes. Give you a little extra time today while we take care of some things and to proceed on with the evidence.

So I'm going to ask you to be back in the -- well, I'll ask Mr. Allen to have you back -- there won't be any reporting back, I guess. Mr. Allen, if you'll have our jurors ready in an hour and fifteen minutes, so that will be nominally 2:10. We should be ready to recommence at that time.

If you'll leave your pens, pads, and notes in your seats. They'll be waiting on when you return. I remind you there ought not to be any discussions or deliberations at this point.

[The jury was excused from the courtroom for the lunch recess.]

THE COURT: Let's take five minutes. And then we have -- you're going to put up those three witnesses next we talked about last night, Mr. Porter?

MR. PORTER: That's correct, Your Honor.

THE COURT: All right. So they're available at this point; is that correct?

MR. PORTER: Your Honor, Mr. Davis is going to handle the presentation of that portion.

THE COURT: Okay. Let's take five minutes. And then let's sort out the testimony on that and then we'll take a lunch recess. We'll take five minutes first.

[Break taken]

THE COURT: Are your witnesses here, Mr. Davis?

MR. DAVIS: Yes, sir. They're outside.

THE COURT: Okay.

MR. DAVIS: I'll step out and get them. I'll bring Ms. Arnold in first.

[The witness was called to the courtroom.]

MR. DAVIS: Your Honor, what I had done is written out questions that comply with the Court's instructions as to which parts of the transcript from the prior hearing would contain admissible testimony and which would not. I have gone over those questions with these witnesses and I've also cautioned them not to testify regarding certain things that were outside of the parameters of the Court's ruling.

THE COURT: Okay. Ma'am, if you'll come up and take the stand, please. Have you discussed -- you can go ahead and be seated up here please, ma'am.

[The witness stepped to the stand.]

THE COURT: Have you discussed the form of the questions or what you anticipate is going to be elicited, Mr. Davis?

MR. DAVIS: Yes, sir, I have.

THE COURT: Okay. Do we have -- our other two are not in the courtroom, are they?

MR. DAVIS: No, sir.

THE COURT: Okay. You understand what questions are going to be asked, Ms. Rogan, Mr. Moore?

MS. ROGAN: Yes. I've also taken from our hearing last night what you've permitted and I have --

THE COURT: Okay.

MR. DAVIS: But, Your Honor, the question you just asked me was have I discussed with the defense the questions I'm going to ask?

THE COURT: Yes.

MR. DAVIS: I have not.

THE COURT: Okay.

MS. ROGAN: Oh, no. He hasn't done that.

THE COURT: Okay.

MR. DAVIS: I've discussed it with the witnesses.

THE COURT: Okay. I didn't know if we had any kind of agreement or understanding or not. I believe what Mr. Davis suggested last night was that he'd do it by way of leading questions, and I guess we might hear what they are and if you have any objection, we'll take it up. If not, then maybe we can proceed on this basis.

MR. DAVIS: All right. For Ms. Arnold, I would ask, first of all, that she take the oath. I'd ask her name and occupation. I would ask her the foundation questions regarding her prior relationship with Ms. Thompson.

THE COURT: Okay.

MR. DAVIS: I would direct her attention to the month of April 1993, and the first question I would ask is: Did Emogene Thompson tell you that she'd had some money stolen from her home? The next question would be: Did she tell you how much money was missing? Then, did she tell you how much money was left? Did she tell you that she reported the theft to the police? Did she tell you whether or not the police responded? Did she tell you what police officer responded to the call? And who did she tell you that officer was? Then, I would ask her: Did Ms. Thompson ever tell you what she was going to do with the money that she still had after the theft?

Then, moving into a different area, in the week or so before Ms. Thompson was killed: Did you and she discuss any progress that Officer Chapel was making on solving the theft of her money? Then, did she tell you anything regarding a hundred dollar bill, a wrapper, and a serial number? What did she say? There's a very limited response to be elicited at that point.

THE COURT: Okay. At this point, let me ask, do you have any objection to -- I guess some of them may be leading questions. Does anybody have any objection to that?

MS. ROGAN: No. I think we agreed last night that leading questions were the safest way to elicit this information that you had permitted.

THE COURT: I mean, I guess we can do it a different way, but it seems to me, based on the ruling of the Court, that lets the state put in what the state's requested, at least what's been ruled admissible and provides some sort of, I guess, boundaries so that we don't get outside that by virtue of the testimony.

MS. ROGAN: That is correct.

THE COURT: Why don't you ask her those questions? Let's see what the answers are going to be.

MR. DAVIS: Well, Your Honor, there were additional questions under the Court's ruling that I would be allowed to ask.

THE COURT: Okay. I'm sorry. Go ahead.

MR. DAVIS: Those are: Did she discuss a possible meeting with Officer Chapel? Then, when did you talk with Emogene Thompson about the meeting involving the serial numbers and the hundred dollar bill and the wrapper? How many times did you discuss it? Was she consistent about what she told you?

THE COURT: And those all ought to be foundation questions, it seems to me.

MR. DAVIS: Well, I think for the flow of the testimony, they belong at this point in time.

THE COURT: If you don't ask them first, it may not come in or at least some similar question. Well, we'll just -- okay.

MR. DAVIS: Well, I asked her if she had discussed -- I asked her above whether or not she had discussed with Ms. Thompson the whole question of the meeting and stuff like that. If she indicated yes, I think that would lay the foundation for it at that point, Judge.

THE COURT: All right. Okay. Go ahead.

MR. DAVIS: Did she say when the meeting with Officer Chapel was to take place? And then ask her when did she say that was going to be? And that was included within the ambit of what the Court said I was allowed to ask.

THE COURT: Okay.

MR. DAVIS: Do you want me to basically run through the direct examination?

THE COURT: Let's run through them. I want to make sure we don't have maybes, but, ifs, or some, you know, vague, wandering questions.

MR. DAVIS: Would you like for me to start at the matters involving April 1993?

THE COURT: Yes, sir.

MR. DAVIS: All right. Ms. Arnold, I'd like to direct your attention to the month of April 1993, did Ms. Emogene Thompson tell you that she had some money stolen from her home that month?

THE WITNESS, MS. ARNOLD: Yes, sir.

MR. DAVIS: All right. Did she tell you how much money was missing?

THE WITNESS, MS. ARNOLD: Yes, sir.

MR. DAVIS: And how much did she say there was?

THE WITNESS, MS. ARNOLD: $7,000.

MR. DAVIS: Did she tell you how much money, if any, she had left after the theft?

THE WITNESS, MS. ARNOLD: $7,000.

MR. DAVIS: All right. Did she tell you that she reported the theft to the police?

THE WITNESS, MS. ARNOLD: Yes, sir.

MR. DAVIS: All right. Did she tell you whether or not the police responded to her call?

THE WITNESS, MS. ARNOLD: Yes, sir.

MR. DAVIS: And did she tell you the name of the police officer who responded to the call?

THE WITNESS, MS. ARNOLD: Yes, sir.

MR. DAVIS: And who was that?

THE WITNESS, MS. ARNOLD: Officer Chapel.

MR. DAVIS: All right. Did Ms. Thompson ever tell you what she was going to do with the remainder of the money that she still had?

THE WITNESS, MS. ARNOLD: Yes, sir.

MR. DAVIS: And what did she tell you?

THE WITNESS, MS. ARNOLD: She was going to keep it on her.

MR. DAVIS: All right.

THE WITNESS, MS. ARNOLD: Carry it in her purse.

MR. DAVIS: Did she say how she was going to carry it?

THE WITNESS, MS. ARNOLD: She going to carry it in her purse.

MR. DAVIS: All right. Now, in the week or so before Ms. Thompson was killed, did you and she discuss any progress that Officer Chapel was making on solving the theft of her money?

THE WITNESS, MS. ARNOLD: Yes, sir.

MR. DAVIS: All right. Did she tell you anything during those conversations about a hundred dollar bill, a wrapper, and serial numbers?

THE WITNESS, MS. ARNOLD: Yes, sir.

MR. DAVIS: What did she say about those things?

THE WITNESS, MS. ARNOLD: She said he had told her he found a hundred bill and a wrapper and was going to get with her to check the serial numbers.

MR. DAVIS: All right. So she discussed a possible meeting with Officer Chapel?

THE WITNESS, MS. ARNOLD: Yes, sir.

MR. DAVIS: Do you recall when it was you talked with Ms. Thompson about this hundred dollar bill and the serial numbers and the wrapper?

THE WITNESS, MS. ARNOLD: Well, the first time was probably within the week before she was killed.

MR. DAVIS: All right. Do you recall approximately how many times you talked to her about it?

THE WITNESS, MS. ARNOLD: Somewhere anywhere from three to ten times.

MR. DAVIS: All right. Was she consistent in what she told you about this particular matter?

THE WITNESS, MS. ARNOLD: Yes, sir.

MR. DAVIS: All right. Did she ever tell you when the meeting with Officer Chapel was to take place?

THE WITNESS, MS. ARNOLD: Yes, sir.

MR. DAVIS: And when did she say that was going to be?

THE WITNESS, MS. ARNOLD: She said it was going down that week, but --

MR. DAVIS: All right. And what week was she referring to?

THE WITNESS, MS. ARNOLD: The week she was killed.

MR. DAVIS: All right.

THE COURT: All right.

MS. ROGAN: There's one other -- there was one aspect of what I thought would be an allowable question and that was as to the taking of the warrant. And it's something I would like to be able to explore on cross- examination, because Ms. Arnold did testify at the hearing we had about Ms. Thompson telling her that there was going to be a warrant drawn and she referred to it as a dummy warrant and that's something I wanted to explore on cross-examination.

MR. DAVIS: Judge, I took the tenor of the Court's rulings last night to say that type stuff wasn't coming in, and that's why I did not leave it in the questions.

THE COURT: Well, I suppose that brings us to a separate issue and that is cross-examination. And, obviously, the defendant's got a right to cross-examine them. And I guess the next question is, based on the cross-examination, what doors does that open?

MS. ROGAN: I'm aware of that, Your Honor. And that's why I'm raising it now rather than at the time that I had the question.

THE COURT: One of my concerns is that we go spend the afternoon on what was it she said. You know, I mean, here we go with everything she ever said by way of hearsay, and we spend the afternoon back and forth with hearsay.

MS. ROGAN: Right.

THE COURT: So --

MR. DAVIS: Judge --

THE COURT: -- obviously, this is an issue -- you've got a right to cross-examine them, I suppose -- I mean, this is not a direct only. So I don't know what the defendant's going to want to ask them.

MS. ROGAN: Well, I can tell you exactly. I would like to ask whether there had been any reference to a dummy warrant being drawn up. I would also like to ask, and I realize this may open a door and something that I will defer to the Court's decision on, whether this witness was aware that Ms. Thompson thought her son had taken the money and did not want to arrest him. Those, I think, are important issues for obvious reasons to the defense in light of the posture that the state has been presenting the evidence in.

THE COURT: Well, let's ask the question. Did she ever express to you any concern or opinion that her son may have taken the money?

THE WITNESS, MS. ARNOLD: Yes, sir.

THE COURT: What's the state's response?

MR. DAVIS: The state's response, Your Honor, is that if she's going to be allowed to ask those types of questions, I should also be allowed to ask her about such things as her understanding that Officer Chapel was following Ms. Thompson around town based on what Ms. Thompson told her about that. It seems to me that basically you're getting into the same type of information that you wanted to exclude last night because of the nature of the information and the way in which it was communicated. It seems to me that these are all part and parcel the same type of communications in the same area.

MS. ROGAN: I disagree with that. I think that the issue about him following or allegedly following her around was an issue about which there was very vague and inconsistent testimony among the three witnesses. The facts I want to get into are discrete facts. I mean, she either told them she thought her son had taken the money or she didn't, she either mentioned that it was going to be a dummy warrant or she didn't. And those are discrete incidents --

THE COURT: Well, let me ask, Mr. Davis, what's the objection to the cross-examination as to any declaration that was made by the victim as to her son taking the money?

MR. DAVIS: I'm not sure that I have any objection to that specific thing, Your Honor. What I'm speaking to is the opening of the door. Ms. Thompson was sure that she was being followed by Mike Chapel. She told three different people that, and she said it happened on many occasions.

THE COURT: Of course, the cross-examination is not with respect to any meeting or suspected involvement or that sort of thing. It's about the -- it seems to me what we have is just --

MR. DAVIS: Well, then, my objection would be hearsay, Your Honor.

THE COURT: Well, I mean, that's what this testimony is going to -- it's offered for the purposes of hearsay. And I think the defendant's position is well taken is on the one side, you can't say, well, we're offering it as hearsay, but we won't -- we object to any hearsay coming out on cross. And I think that's where we are.

MR. DAVIS: If the Court had made a blanket ruling that this matter would be -- that everything that was testified to was within the exception to the hearsay rule under 24-3(b)(1), then I don't understand why, frankly, we're not allowed to get into what was said about following people around town, about the need for secrecy.

THE COURT: Well, we went through all that last night, and that's -- my opinion is still -- it remains the same. You know, it's not a -- that statute is not a license for every piece of hearsay that exists. My feeling is, I think you can ask what you've asked, she can say what she's going to say, and I think on cross- examination, you can inquire as to the comments that the victim made as to her suspicions as to the son or statements she made about thought her son did it, and I think that opens the door to the state to the extent of anything with reference to any comments about the son or the son taking it, but I don't think it opens the door beyond that.

I think it opens the door with respect to what's referenced on cross. If you bring up something new on cross, you've opened the door to that extent, but I don't think then that opens the door to any other question on direct you want to ask on that.

MS. ROGAN: Okay. That's fine.

THE COURT: Okay? And then if on redirect, you open something else up, you know, then so be it, but --

MR. DAVIS: I'd like to clarify a matter for the witness, then --

THE COURT: All right.

MR. DAVIS: -- so she'll know where she stands. When I ask the question involving the hundred dollar bill and the serial numbers and the comparison and the wrapper, I believe your testimony in the prior hearing was that the question of taking the warrant that we've been discussing had come up in that same context; is that correct?

THE COURT: Well, let me ask, everybody wants to talk about the warrant; is that correct?

MR. DAVIS: I do not.

MS. ROGAN: I do, Your Honor. That was part and parcel of the alleged meeting to compare the money and the wrapper was to draw up a warrant.

THE COURT: Yeah. Well, the reason I set the boundaries I did, at least one of the reasons, was that just simply part of it is just kind of vague and I don't think every reference that the defendant -- that the victim made that might in some way be collateral to the issues here, I don't think that's admissible on an exception to the hearsay ruling.

And that's the reason I think it ought to be short, sweet, and to the point if it's coming in by virtue of hearsay. It ought to be focused and ought to be directly related to the issues and not all kinds of side issues, sort of comments, vague descriptions, or references, and that's the reason for the guidelines I set last night.

And I think if you want to ask the issue or you want to raise the issue of her opinion or her comments about her son, I'll allow that, and to whatever extent you want to reinquire about that issue, fine. And if anything else is opened up on cross, then, you know, I guess we can spend the afternoon reciting Ms. Thompson's comments.

MS. ROGAN: Well, so that I understand you, Your Honor, you previously said that the issue as to the warrant was something that if I asked that on cross, that would open up only as to that issue.

THE COURT: Well, it's not allowed on cross at this point. You can ask her about the son, but I kept the warrant part out because of the kinds of objections I've got and the kind of reasons I think it ought --

MS. ROGAN: Okay. So there's not to be any testimony at all about a warrant?

THE COURT: That's right. That's right.

MS. ROGAN: Okay. All right. That's fine.

THE COURT: All right. Anything else of this witness at this point?

MR. DAVIS: No, sir. That was the list of questions that I would have.

THE COURT: All right. You can come down. You can come down. You need to remain outside, and Mr. Davis is going to be asking you to step back in after the lunch recess.

[The witness stepped down.]

MR. DAVIS: Your Honor, what time are we going to return so I can tell her what she can --

THE COURT: It depends on what time we get through here, sometime soon, I hope.

MR. PORTER: Your Honor, since there's not a bailiff, I'll get the next witness. I'm a multi-purpose trial lawyer, district attorney and bailiff.

THE COURT: Are your questions for the next witness basically the same?

MR. DAVIS: Yes, sir.

THE COURT: Okay.

MS. ROGAN: Yeah, and I think we've -- I have the same questions.

THE COURT: Why don't you just ask the questions, and we'll just let her answer them as we go through them?

[The witness was called to the courtroom.]

THE COURT: Ma'am, if you'll take the witness stand up here. I'm not going to bother with the oath at this point.

MR. DAVIS: Thank you.

THE COURT: Just come on up and be seated, please.

MR. DAVIS: Your Honor, understanding once again, I would ask a series of foundation questions into the nature of the relationship between her and the victim.

But getting down to the heart of the matter, Ms. Chance, I direct your attention to April 1993, the month during which Emogene Thompson was killed --

THE WITNESS, MS. CHANCE: Yes, sir.

MR. DAVIS: -- did Emogene tell you about having some money stolen out of her home that month?

THE WITNESS, MS. CHANCE: Yes, she did.

MR. DAVIS: All right. What did she say about it?

THE WITNESS, MS. CHANCE: She said that she had $15,000 and half of it had been taken.

MR. DAVIS: All right. Do you recall about when that conversation was and where you were when you had it?

THE WITNESS, MS. CHANCE: Yes. We were at work and it was on a Tuesday night.

MR. DAVIS: Okay. Now, at a later point in time, did Emogene tell you about a meeting she was supposed to have with the officer who was working on the theft?

THE WITNESS, MS CHANCE: Yes, she did.

MR. DAVIS: What did she say?

THE WITNESS, MS. CHANCE: She said that some bills and some wrappers had surfaced and he had called her about them and she was planning to meet him again later.

MR. DAVIS: All right. Do you recall about when that conversation took place?

THE WITNESS, MS. CHANCE: It was the Tuesday before she died on Thursday.

MR. DAVIS: All right. So that would be Tuesday, April 13?

THE WITNESS, MS. CHANCE: Yes.

MR. DAVIS: Your Honor, as I understood the Court's restrictions, that is basically all of the questions I would ask of Ms. Chance.

THE COURT: All right. Ms. Rogan?

MS. ROGAN: Mr. Moore's going to do this one.

MR. MOORE: That's as I understood it to be, Your Honor.

THE COURT: Okay. All right. Is there anything else you want to take up before she takes the stand with respect to the questions asked?

MS. ROGAN: No.

MR. MOORE: Your Honor, I don't intend to ask her any hearsay. Now, I'm going to ask her questions or facts that she observed --

THE COURT: Good.

MR. MOORE: -- of things that she's not referring to what somebody told her.

THE COURT: All right. Ma'am, you can come down until -- would forty-five minutes be sufficient? If we get through in another five minutes or so and we start back at 2:15, is that sufficient for you, Mr. Davis?

MR. DAVIS: Yes.

THE COURT: Ms. Rogan and Mr. Moore?

MS. ROGAN: For us, yes.

THE COURT: Okay. Our bailiff will assist you.

MR. PORTER: If I'm going to be a bailiff, Judge, I want $25.00.

[The witness, Ms. Chance, stepped down from the stand and exited the courtroom.]

[The witness, Ms. Burel, was called to the courtroom.]

MR. DAVIS: Ms. Burel, if you'll just come up here and have a seat on the witness stand.

[The witness stepped to the stand.]

MR. DAVIS: I'm going to ask you a series of questions. The Judge wants me to ask you so all the parties can hear the matter before we testify in front of the jury this afternoon. And you recall that I'm going to ask you several questions about your relationship with Ms. Thompson to establish how long y'all have been friends and things like that.

I'm not going to ask those questions now. I'm going to drop down and talk about April 1993. So, directing your attention to the month of April 1993, the month during which Ms. Thompson was killed, did Emogene tell you that she had had some money stolen from her home?

THE WITNESS, MS. BUREL: Yes, sir.

MR. DAVIS: All right. Did she tell you about how much money was missing?

THE WITNESS, MS. BUREL: When it was first stolen, she said six, seven, $8,000 --

MR. DAVIS: All right.

THE WITNESS, MS. BUREL: -- the first time.

MR. DAVIS: Did she tell you how much money was basically left after the theft?

THE WITNESS, MS. BUREL: Later, she said around $7,000 or something like that.

MR. DAVIS: Okay. Did she tell you that she reported the matter to the police?

THE WITNESS, MS. BUREL: Yes, sir.

MR. DAVIS: All right. Did she tell you about the police responding to your call --

THE WITNESS, MS. BUREL: Yes.

MR. DAVIS: -- to her call. I'm sorry.

THE WITNESS, MS. BUREL: Yes, sir.

MR. DAVIS: All right. What did she tell you about the day that the police officer came out to the house?

THE WITNESS, MS. BUREL: She told me that the officer came out, and she told the officer about the money that was stolen, and he sat down there with her and helped her count the money, help her go over what was -- how much was stolen.

MR. DAVIS: All right. Did she actually say that she and the officer counted the remaining money together?

THE WITNESS, MS. BUREL: Yes.

MR. DAVIS: All right. Ms. Burel, did you talk with Emogene Thompson on Thursday, April 15, 1993?

THE WITNESS, MS. BUREL: Yes, sir.

MR. DAVIS: As you understand it, was that the day she was killed?

THE WITNESS, MS. BUREL: Yes, sir.

MR. DAVIS: All right. How many times did you speak with her that day?

THE WITNESS, MS. BUREL: When I got off from work, when I got home --

MR. DAVIS: Listen to my question. How many times did you speak with her that day?

THE WITNESS, MS. BUREL: That evening?

MR. DAVIS: Yes.

THE WITNESS, MS. BUREL: Four, five, six times that evening.

MR. DAVIS: Okay. And over what time period were those phone calls?

THE WITNESS, MS. BUREL: From when I got home, about 4:30, up till about 8:30.

MR. DAVIS: Okay. Do you recall approximately what the last time you talked to her was, about when that was?

THE WITNESS, MS. BUREL: Around 8:30, the last.

MR. DAVIS: Did Emogene tell you that day that she expected to meet with Officer Chapel that night?

THE WITNESS, MS. BUREL: Yes, sir.

MR. DAVIS: All right. Did she tell you why it was they were supposed to meet with each other?

THE WITNESS, MS. BUREL: Yes, sir.

MR. DAVIS: What did she say?

THE WITNESS, MS. BUREL: She said that the officer asked her to meet him to compare her money, her bills, with what he -- the bills he had. Compare the serial numbers on what she had to what he had.

MR. DAVIS: Did she tell you what she meant by the bills that he had?

THE WITNESS, MS. BUREL: He was supposed to have four one hundred dollar bills.

MR. DAVIS: All right. Now, did she -- as you spoke to her on Thursday, April 15, did she tell you when it was that she and Officer Chapel had discussed having this meeting?

THE WITNESS, MS. BUREL: Repeat that now.

MR. DAVIS: When you talked with her on Thursday, April 15, did she tell you when she and Officer Chapel had set up or discussed the meeting that she was supposed to have?

THE WITNESS, MS. BUREL: Yes, sir.

MR. DAVIS: All right. When did she say that was?

THE WITNESS, MS. BUREL: She said that she talked to him Wednesday, he pulled her over Wednesday, and said that he would meet with her Thursday and compare the bills that he had, the money.

MR. DAVIS: All right. When you talked with her on Thursday, did she tell you that she was expecting a phone call from Officer Chapel?

THE WITNESS, MS. BUREL: Thursday, yes, sir.

MR. DAVIS: All right. Did she tell you what -- on that day, on that Thursday, did she tell you what it was she was going to be doing with her money that night?

THE WITNESS, MS. BUREL: She was going to have -- the money that she had, that she was going to take with her, and she was going to compare the bills, the money she had with the money he had, the serial numbers.

MR. DAVIS: All right. And those are the questions I would propose to ask her.

THE COURT: All right. Ms. Rogan?

MS. ROGAN: Well, the same as with Ms. Arnold, I would like to inquire as to whether this witness was told by Ms. Thompson that she suspected her son to have taken the money.

THE COURT: Did Ms. Thompson ever tell you that she suspected her son, Michael, of taking the money?

THE WITNESS, MS. BUREL: When the money was first reported or the first time the money was stolen?

THE COURT: Yes.

THE WITNESS: Yes.

THE COURT: Okay.

MS. ROGAN: Okay. Now, given her answer, I -- she testified at some length at the hearing, as you recall, and she has testified previously that Mr. Michael Thompson had taken money from his mother previously, which is something I'd like to get into, but not if it's going to open the door to a lot of other otherwise inadmissible hearsay. I think it's important for the reasons we discussed this morning at the bench conference in terms of Mr. Chapel's response.

MR. DAVIS: Your Honor, we are getting far afield from the limited purpose for which the hearsay is being offered in this case. We're talking -- we don't know what incidents we're referring to now. We're not talking about the question of the money that was still in the house. I understand her being --

THE COURT: Well, I have the same concerns. I just think the statute, the exception to hearsay ought to be -- well, we went through it last night. I just think it ought to be focused. I think it ought to be narrowly construed as far as the exception because it is hearsay and not just a random everything somebody ever said kind of examination. I mean, there's no end to it.

MR. DAVIS: Our objection is --

THE COURT: And there's no examination of it by opposing party, no matter who puts it up. All right. You can inquire as to her -- what she said about her son. All right. Anything else at this point?

MS. ROGAN: Can I inquire at that as to whether or not she wanted to have her son arrested?

THE COURT: Do you know that? Did she ever express to you whether there were any prospects of having her son was arrested or whether she wanted to have him arrested or not arrested or was that ever discussed?

MR. DAVIS: Answer the question.

THE WITNESS, MS. BUREL: The night that -- I don't know if I'm answering your question correctly or not --

THE COURT: Just tell me what you know. That's all I'm asking.

THE WITNESS, MS. BUREL: Okay. The night that I talked to Jean, Thursday night, in one of the conversations, she said that she was -- that the officer told her that Michael stole the money, you know, the first money --

THE COURT: Okay. That was the officer's statement. My question is --

THE WITNESS, MS. BUREL: -- and then he was to get a warrant for Michael.

THE COURT: I understand all that, but my question to you is did the victim, Ms. Thompson, ever tell you that she wanted or didn't want to have her son arrested or that was something she'd ever considered or that ever caused her to do anything one way or the other, her concerns about Michael being arrested? Did she ever say anything to you about that?

THE WITNESS, MS. BUREL: Was she concerned about him being arrested; is what you're saying?

THE COURT: Yes.

THE WITNESS, MS. BUREL: Well, yes. She was concerned, but if -- if that's what you mean. She was worried about it.

THE COURT: What did she -- did she ever tell you, 'I think Michael did it and I don't want him arrested' or 'I don't want this matter pursued because he might get arrested' or was that ever discussed in any way?

THE WITNESS, MS. BUREL: Yes, sir.

THE COURT: And what did she say?

THE WITNESS, MS. BUREL: I can't -- I don't know if I can explain it in details. She just said that the money that was stolen that she felt like he should be -- she would -- I believe she'd press charges against him.

THE COURT: Against who?

THE WITNESS, MS. BUREL: Mike, Michael Thompson.

THE COURT: If he took the money, she would?

THE WITNESS, MS. BUREL: Yes.

THE COURT: I don't think that's a matter we're going to inquire into.

MS. ROGAN: I don't think I want to.

MR. PORTER: Gee, I'm surprised.

MS. ROGAN: Well, she's testified differently from what she said at the hearing, so I really -- I don't want to open that can of worms.

THE COURT: Well, I mean, you know, that's the problem. That's the problem with getting into collateral matters, you know, I mean it's -- I think maybe --

MR. DAVIS: Your Honor, I resent Ms. Rogan's comment. The witness has now been made to feel like she's done something wrong --

THE COURT: No.

MR. DAVIS: -- or she feels bad because of what Ms. Rogan said, and the witness just audibly indicated that.

THE COURT: Well --

MR. DAVIS: I don't think this lady should be here to be beaten up on.

THE COURT: You've heard -- my directions to you would be when you come in to testify, listen to Mr. Davis's questions and respond to his questions. Okay? Give him the answers to the questions he's asking. Okay? Anything else, Mr. Davis?

MR. DAVIS: No, sir.

THE COURT: Anything else from the defendant?

MS. ROGAN: No. With the understanding that if no comment about a warrant comes out through direct examination, I will not go into it on cross.

THE COURT: Right.

MS. ROGAN: But if something about a warrant does come out on direct, I would like to have the opportunity to clarify what --

THE COURT: You can cross them on whatever comes out on direct.

MS. ROGAN: All right. That's fine. And I have nothing other than that.

THE COURT: Okay. That's the nature of cross, I think.

MR. MOORE: Your Honor, one thing before we leave. I just want to make the record clear that we still stand by our original objection that none of this stuff should come in. By participating in these proceedings to minimize the damage, we're not waiving the original objection.

THE COURT: I understand. All right. I understand.

MR. DAVIS: And for what good it does me, I stand by our objection to the stuff that you won't allow in.

THE COURT: All right.

MR. PORTER: Your Honor, as more general -- as a statement more general in nature, I think, given the structure that the Court has given us, both defense and state, and the structure which we have submitted to, I think it would be inappropriate for a vein of cross-examination which said 'have you been prepared by the district attorney's office or' -- I think that would put us at a disadvantage. That's one thing --

THE COURT: Well, that's an interesting point. You can come down, ma'am. Why don't you have her go on back outside?

[The witness stepped down from the stand and exited the courtroom.]

THE COURT: Mr. Moore?

MS. ROGAN: Well, Your Honor, I wasn't intending to get into that in detail. I don't know that I agree with Mr. Porter because --

THE COURT: Well, I guess we'll get into -- if we get into those issues, we could also get into the issue, well, what did the judge tell you to say, because I think this is a round robin of a structured kind of an order to avoid inadmissible evidence and because of the nature of the testimony, it being an exception to the hearsay rule, and the constraints all the way around and the difficulty of everybody dealing with it, I think -- frankly, I think Mr. Porter's comments are well made.

MR. PORTER: Your Honor, I think every other witness who comes up here, they can take their shot, but I think it's clear that these witnesses have been prepared --

THE COURT: I think if we get into that, I'm going to be compelled to tell them -- to make clear to the jury that the Court has intervened and what kind of questions can be asked and not only everybody understand by virtue of what the state's going to ask but what the defendant's going to ask and what their answers are going to be and all that under the direction of the Court because of the nature of the testimony.

MS. ROGAN: All right. Well, there is --

THE COURT: If we get into all that -- I don't that's going to be helpful to anybody if we get into that, but that's where we'll be if we do.

MS. ROGAN: There is the issue, and I'm not suggesting they've been prepared, but there is the issue that each of these witnesses have made prior statements to the police in addition to their testimony. And to the extent that I want to get into inconsistent comment about their statements to the police about what they observed or did, I'd like to ask them if they had a chance to review their statements before they testified. I'm not sure that's commenting --

MR. PORTER: That's not exactly what -- I mean --

MS. ROGAN: Okay.

MR. PORTER: There have been questions, 'have you talked to investigators from the DA's office, have they told, have you' -- that type of questioning I think would be inappropriate in this circumstance.

MS. ROGAN: Right. Okay.

THE COURT: Yeah. And I think if they've given -- if any witness has given a prior inconsistent statement about what Ms. Thompson told them, I think that's open. That's certainly fine.

MS. ROGAN: All right.

THE COURT: I mean, there's nothing that makes a -- if a witnesses -- their version of the hearsay this time is different from what they said the hearsay was some other time, then I think the regular rules apply and it's impeachable.

MR. PORTER: That's not the point that I'm making, Your Honor.

THE COURT: Yeah, I understand. I understand. And I think it's a point well made. All right. Anything else at this point, Mr. Porter?

MR. PORTER: No, Your Honor. We're ready to start whenever the Court is.

THE COURT: Mr. Moore?

MR. MOORE: No, Your Honor.

THE COURT: Let's say -- what do you want?

MR. PORTER: Your Honor, if we're given the time frame, I would appreciate until 2:30. That gives us fifty minutes.

THE COURT: All right.

MR. MOORE: Your Honor, we're doing things other than lunch. We're calling witnesses and stuff too at lunch, so I'd appreciate if you'd give us until 2:30 also.

THE COURT: All right. We'll be in recess until 2:30.

[Lunch recess]

-

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3790

AFTERNOON SESSION

[Proceedings resumed following the lunch recess with the jurors not present.]

THE COURT: Is the state ready?

MR. PORTER: Yes, Your Honor.

THE COURT: Defendant ready?

MR. MOORE: Yes, Your Honor.

THE COURT: Bring the jury back, please.

[The jury returned to the courtroom and proceedings resumed, as follows.]

THE COURT: Call your next witness.

MR. DAVIS: Thank you, Your Honor. Your Honor, the state calls Ms. Marsha Arnold.

[The witness was called to the courtroom.]

MR. DAVIS: Ms. Arnold, if you would, please, come take the witness stand.

[The witness stepped to the stand.]

THE COURT: If you'll administer the oath, Mr. Davis.

MR. DAVIS: Thank you, Your Honor. Please raise your right hand. Do you swear the evidence you shall give in this matter now in proceeding shall be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS: Yes, I do.

Whereupon,

MARSHA ARNOLD

having been called as a witness and duly sworn, was examined and testified, as follows:

DIRECT EXAMINATION

BY MR. DAVIS:

Q. All right. I'm going to ask you to kind of lean forward a little bit to the microphone, so please speak up and it might help if you turn towards the jury when you speak and that way it might make it easier for them to understand what you say. Please state your full name.

A. Marsha Arnold.

Q. All right. And how are you employed, Ms. Arnold?

A. How am I employed?

Q. Yes.

A. With Rockwell.

Q. All right. How long have you been with them?

A. About thirteen and a half years.

Q. And what do you do with them?

A. I'm a certified associate.

Q. All right. Ms. Arnold, did you once know a lady by the name of Emogene Thompson?

A. Yes, I did.

Q. How did you come to know her?

A. We worked together at Rockwell.

Q. And for how long a period of time did y'all work together?

A. Probably a little over eight years.

Q. Okay. How long did you -- had you known her total by the time she died?

A. Ten, eleven years.

Q. All right. Did you see and talk with her on a regular basis in the months and years before she died?

A. Yes, I did.

Q. All right. How would you describe the relationship that you had with Jean Thompson?

A. Very close.

Q. Did you discuss personal things with her?

A. Yes, I did.

Q. And did she discuss personal things with you?

A. Yes, sir.

Q. Were the matters that you talked about sometimes important things?

A. Yes, sir.

Q. Ms. Arnold, I'd like to direct your attention to the month of April 1993, the month that Jean Thompson was killed.

A. Yes.

Q. Did Emogene Thompson tell you at some point that month that she had had some money stolen from her home?

A. Yes, sir.

Q. Did she tell you how much money was missing?

A. Yes, sir.

Q. And how much did she say?

A. $7,000.

Q. Did she tell you how much, if any, money had been left after the theft?

A. $7,000.

Q. All right. Did she tell you that she reported the theft to the police department?

A. Yes, sir.

Q. And did she tell you whether or not --

THE COURT: Can all the jurors hear the witness?

JUROR: No, sir.

JUROR: Not very well, Your Honor.

THE COURT: You need to speak up, please. You need to get the level up so everybody can hear you, please.

THE WITNESS: Okay.

BY MR. DAVIS:

Q. All right. Let me back up and make sure we cover some things and everybody was able to hear. When you talked with Ms. Thompson in your daily life, did y'all discuss personal important things together?

A. Yes, sir.

Q. Did you confide in each other about things?

A. Yes, sir.

Q. I want to direct your attention once again now to April 1993. Did Ms. Thompson tell you that she had had some money taken from her home that month?

A. Yes, sir.

Q. All right. Did she tell you how much money had been taken?

A. Yes, sir.

Q. And how much was it?

A. $7,000.

Q. All right.

MR. DAVIS: Can everybody hear now?

JUROR: Better.

BY MR. DAVIS:

Q. Did she tell you how much money was left after the theft?

A. Yes.

Q. And how much did she say that was?

A. $7,000.

Q. Did she tell you that she reported the theft to the police department?

A. Yes, she did.

Q. And did she tell you whether or not the police responded to the call?

A. Yes, sir.

Q. Did she tell you the name of the officer who responded to the call?

A. Yes, sir.

Q. And who did she say did that?

A. Officer Chapel.

Q. All right. At any point in time after that theft, did Ms. Thompson ever tell you what she was going to do with the money that she still had?

A. Yes, sir.

Q. What did she say she was going to do with it?

A. She was going to carry it in her purse.

Q. Okay. Now, I want to narrow the time frame down just a little bit if we can. Ms. Thompson died on April 15, 1993. In the week or so before that Thursday she died, did you and she discuss any progress that Officer Chapel was making on solving the theft of her money?

A. Yes, sir.

Q. Did she tell you something regarding a hundred dollar bill, a wrapper, and comparing serial numbers?

A. Yes, sir.

Q. What did she tell you?

A. She said she was going to get with him and they was going to compare serial numbers. That he had a hundred dollar bill and a wrapper and he wanted to compare serial numbers.

Q. All right. So she told you that she was going to have some sort of meeting with Officer Chapel?

A. Yes.

Q. All right. Now, do you recall when it was in time that you talked with her about this hundred dollars and the wrapper and the serial numbers and the meeting to compare things?

A. Within about a week and a half of her dying.

Q. How many times did y'all discuss that matter?

A. Three to ten times.

Q. Several times?

A. Yes.

Q. Was she consistent when y'all talked about it in what she told you?

A. Yes, sir.

Q. Did she ever tell you when this meeting with Officer Chapel was supposed to take place?

A. The week she was killed.

Q. She said it was going to be sometime that week?

A. It was going down that week is what she said.

Q. Those were her words?

A. Those were her words.

MR. DAVIS: That's all the questions I have at this time, Your Honor.

THE COURT: Ms. Rogan?

MS. ROGAN: Yes. Thank you, Your Honor.

CROSS EXAMINATION

BY MS. ROGAN:

Q. Good afternoon, Ms. --

A. Arnold.

Q. -- Arnold. You've told us you work at Rockwell --

A. Yes, ma'am.

Q. -- as a certified associate?

A. Yes, ma'am.

Q. Can you tell us, please, what a certified associate does?

A. Everything.

Q. Exactly what, though? I mean, what --

A. Build, inspect, test with missiles, yes.

Q. Oh, I see. You actually work -- what does Rockwell do? Let's just back up.

A. We build bombs.

Q. You build -- okay. And what exactly -- I don't want to get you angry -- what exactly are your job responsibilities?

A. I test, I inspect, I pull, everything. That's what a certified associate does, everything.

Q. Okay. And you work during the day?

A. Yes, ma'am.

Q. Time hours, nine to five or 8:30 to --

A. Seven to 3:30.

Q. Seven to 3:30. Now, you've told us that you were a neighbor of Ms. Thompson's. For how long had you been a neighbor?

A. Five, six years.

Q. Okay. Did you live across the street from her on Craig Drive or down the street a bit?

A. About three doors up from her.

Q. When she first told you that the money was missing from her house -- well, do you remember when it was she first told you that?

A. It was, I guess, about two to three weeks before she was killed.

Q. Do you remember exactly when it was she told you?

A. No.

Q. Do you remember if it was in March, the end of March, or was it in the beginning of April?

A. No, I don't. Approximately two to three weeks before she was killed.

Q. Okay. She had not yet called the police at the time?

A. Oh, yes, she had.

Q. So you didn't advise her to call the police?

A. No. She had already called and had the -- everything was done when she told me. I was out of town that weekend.

Q. Excuse me? You were out of town the --

A. I had been out of town when she called me and told me about it.

Q. Okay. Did you -- were you concerned about the fact that she was keeping the money in her house?

A. Oh, yes, ma'am.

Q. Okay. Did you offer to keep the money for her?

A. No. I offered to make arrangements to have it put up.

Q. Okay. You were hoping to encourage her to put it in a bank or to put it somewhere safe?

A. Oh, yes. We was going to put it in the safety deposit box in my name and her keep the key so that I wouldn't be responsible for it, but she had to have me to get it out.

Q. Okay. You never saw the money itself, did you?

A. No, ma'am.

Q. Okay. And do you know where in the house she had it hidden?

A. Not until after the first half was stolen and then she told me where it had been hidden.

Q. Did you know about the money at all before it was stolen?

A. Yes, ma'am.

Q. Okay. So you were aware that she had a large quantity of money in her house?

A. Yes, ma'am.

Q. Okay. But you didn't know at that time where she'd hidden it?

A. No, ma'am.

Q. But you've testified in direct examination that she had told you that after the money was stolen, she was going to carry the remainder of it in her purse with her?

A. Yes, ma'am.

Q. Okay. Do you remember telling, I believe it was Officer Tkacik who spoke to you at your job --

A. I don't remember the name.

Q. I take that back. It was Investigator Barnhart from the DA's office, I believe she was in court earlier. Did they come out to your job --

A. Oh, yes, ma'am.

Q. -- to speak to you that day?

A. Yes, ma'am.

Q. And they told you what happened to Ms. Thompson?

A. Oh, I had already heard it.

Q. You'd already heard it?

A. Uh-huh [affirmative].

Q. Okay. And you spent some time talking to them that day?

A. Yes, ma'am.

Q. Do you remember telling the folks from the DA's office who came out that you thought she was going to be carrying the rest of the money in her purse after it was stolen?

A. Uh-huh [affirmative]. Yes, ma'am.

Q. Okay. So you weren't really sure at that point that she was going to be carrying the rest of the money in her purse?

A. Well, they didn't mention the money and -- they didn't mention the money. It dawned on me, I says, 'You know, she had some money on her.'

Q. Okay. And you told them that she had some money --

A. Yes.

Q. -- in her house?

A. No. She -- she told me she was carrying it on her.

Q. My question, Ms. Arnold, is do you remember telling the investigators from the district attorney's office that you thought she was going to be carrying the money in her purse?

A. I don't remember.

Q. Would it refresh your recollection, ma'am, to look at your statement?

A. I've recently read it, but I don't really remember right now.

Q. Okay. Well, would you like to look at it right now and see if you can remember?

A. Sure.

Q. Okay.

MS. ROGAN: May I have this marked, please?

[Defendant's exhibit was marked for identification by the court reporter.]

BY MS. ROGAN:

Q. Okay. This is the four-page statement. Do you recognize this, ma'am?

THE COURT: What number is that?

MS. ROGAN: I'm sorry, Your Honor. It's D-50.

BY MS. ROGAN:

A. Yes, I remember.

Q. Okay. And you said you have reviewed it recently?

A. Yes, ma'am.

Q. Okay. I'd like to direct your attention to the third page. And if you'd like to review it completely now, you're perfectly free to, but what I'm interested in is in this paragraph right here. If you would just read that to yourself and see if that refreshes your recollection as to what you told the representatives from the district attorney's office.

A. [Reading document] Yes.

Q. Okay. Do you now recall telling them that you think she was going to be carrying the money?

A. Yes, ma'am.

Q. So you weren't really sure at that time that that's what she'd told you?

A. I can't remember exactly how I felt at that time. I had just learned that she had been murdered on my job and then the police officers were there, the detectives. I remember telling them everything I could to help.

Q. Okay. My question, ma'am, was does that refresh your recollection that you told them that day that you thought --

A. Yeah, I thought she was.

Q. -- she was going to -- okay. What did Ms. Thompson's purse look like, ma'am?

A. I can't remember it.

Q. Now, Ms. Arnold, did Ms. Thompson believe that her son was involved in the disappearance of that money?

A. Yes, ma'am.

Q. Now, you testified you were out of town the weekend that she called the police?

A. She did not tell me she called the police until after it was over with, and I do believe I was out of town during the time.

Q. After the visit by the police was over with, is that what you're referring to?

A. I'm assuming that, sometime during that time. She did not tell me for about three -- three days after it happened.

Q. After what happened?

A. After she'd called the police.

Q. Okay. So you're assuming from that that she called them during the time you were out of town?

A. Yes, ma'am.

Q. There came a point in time, however, where you were aware that she had called the police and that in fact Officer Chapel had responded?

A. Yes, ma'am.

Q. And you knew Officer Chapel, didn't you?

A. Yes, ma'am.

Q. Okay. He had worked on a case involving your daughter, hadn't he?

A. Yes, ma'am.

Q. And you told Ms. Thompson that he was a good police officer, didn't you?

A. Yes, ma'am, I did. I told her she could trust him.

Q. Now, the situation with your daughter, and I don't mean to embarrass you, but it is important that I ask you, did it involve the theft of some jewelry from some people --

A. Yes, ma'am.

Q. -- who she knew?

A. Yes, ma'am.

Q. Okay. And she was a teenager at the time?

A. Yes, ma'am.

Q. Okay. And Officer Chapel was the police officer who responded to your call, I presume --

A. No, ma'am.

Q. -- or the victims --

A. Yes, ma'am.

Q. -- of that particular theft?

A. Yes, ma'am.

Q. Okay. And he spoke to you about ways in which he could handle the case with your daughter?

A. Yes, ma'am.

Q. And he set something up, didn't he, where he pulled you over on your way home from church one day --

A. Yes, ma'am.

Q. -- and had your daughter get in the back seat of his car or in his car and talk, basically, to try to scare her or bluff her into to giving back the jewelry?

A. Yes, ma'am.

Q. And that worked, didn't it? She gave the jewelry back?

A. Yes, ma'am.

Q. Okay.

MS. ROGAN: That's all I have.

THE COURT: Redirect?

MR. DAVIS: No questions, Your Honor. I'd ask that Ms. Arnold be excused.

THE COURT: All right. Do you wish her to remain on call?

MR. DAVIS: Yes. I think we'll be able to reach her.

THE COURT: All right. You can come down. Call your next witness.

[The witness stepped down from the stand.]

MR. DAVIS: The state calls Ms. Virginia Chance.

[The witness was called to the courtroom.]

THE COURT: Ms. Chance, if you'll come up and take the witness stand, please.

[The witness stepped to the stand.]

MR. DAVIS: Ms. Chance, if you would, please, raise your right hand. Do you swear the testimony you shall give in this matter now proceeding, shall be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS: Yes, I do.

Whereupon,

VIRGINIA ANN CHANCE

having been called as a witness and duly sworn, was examined and testified, as follows:

DIRECT EXAMINATION

BY MR. DAVIS:

Q. All right. I'm going to ask you to lean just a little bit forward towards those two large black microphones and speak fairly loudly so everybody in the jury panel can hear you, and it might help if you face them when you talk to them. They might be able to understand you a little better.

A. All right.

Q. Please state your full name.

A. Virginia Ann Chance.

Q. And how are you employed?

A. CIBA Vision Corporation.

Q. All right. And how long have you worked with CIBA Vision?

A. This is my sixth year.

Q. All right. And what do you do for them?

A. I'm an auditor.

Q. All right. You live up in the northern end of Gwinnett County?

A. Yes, I do.

Q. And how long have you lived up in that area?

A. Fifteen years.

Q. Okay. Did you live near Emogene Thompson?

A. Yes.

Q. All right. You knew Emogene Thompson; is that correct?

A. Yes, I did.

Q. Were you all coworkers at CIBA Vision?

A. Yes, that's correct.

Q. How long did you know her at the time that she died back in 1993?

A. Approximately two years.

Q. Okay. Did you work with her on the same shift and do -- basically in the same department?

A. Yes. We were in the same department, same shift.

Q. And what was that department?

A. High volume separation inspection.

Q. All right. During the time that you knew Emogene Thompson, how often would you see her?

A. Every day.

Q. All right. Did you sometimes ride back and forth to work together with her?

A. Yes, we did.

Q. All right. And how often would y'all do that, say, in a month's time?

A. Maybe four to five times a month.

Q. All right. Ms. Chance, how would you describe the relationship that you had with Emogene Thompson?

A. We became close friends over a period of time.

Q. All right. Did y'all discuss important, private things with each other?

A. Yes, we did.

Q. Would you confide in each other about things that you might not necessarily tell other friends?

A. Yes.

Q. Okay. I want to direct your attention to April 1993, the month during which Jean Thompson was killed. Did Jean tell you anything about having some money stolen out of her home that month?

A. Yes, she did.

Q. All right. What did she tell you?

A. She said she had approximately $15,000 and over half of it was taken.

Q. All right. Do you recall when it was and where you were when y'all had this conversation?

A. Yes. We were at work and it was on a Tuesday night.

Q. Okay. Now, at a later point in time, did she tell you about a meeting that she was supposed to have with the police officer who was working on the theft case?

A. Yes, she did.

Q. What did she say?

A. She said that he had phoned her and told her that some of the money had surfaced along with the wrappers and they wanted to compare serial numbers.

Q. Okay. Now, do you recall when that conversation took place?

A. Yes. It was the Tuesday before she died on Thursday.

Q. So that would be Tuesday, April 13, 1993?

A. Yes.

MR. DAVIS: Your Honor, that's all the questions I have.

THE COURT: Cross-examination?

CROSS EXAMINATION

BY MR. MOORE:

Q. Ms. Chance, my name's Johnny Moore, and I have a few questions to ask you. You said you rode back and forth to work four or five times a month with Ms. Thompson; is that right?

A. Yes.

Q. Okay. Was she a smoker?

A. Yes, she was.

Q. Do you smoke?

A. No, I don't.

Q. Did you ever notice what kind of cigarettes she smoked?

A. Pall Mall Longs.

Q. What was that?

A. Pall Mall Longs.

Q. Okay. Now, this money that was mentioned, did you ever see any of the money that Ms. Thompson had?

A. No, I didn't.

Q. Did you ever see any jewelry or anything she might have been carrying in her purse?

A. Not jewelry, no.

Q. Okay. You said not jewelry.

A. Uh-huh [affirmative].

Q. Was there something else?

A. Just the pocketbook -- purse when she took it out.

Q. Okay. What was her pocketbook she carried like back then? Did she have just one?

THE COURT: The jurors are having trouble hearing so, Ms. Chance, please speak up so everybody can hear. Go ahead, please.

THE WITNESS: I'm sorry.

BY MR. MOORE:

Q. Back at that time in 1993, did she have just one pocketbook she usually carried or did she have a number of them?

A. I think she switched out sometimes.

Q. Okay. Did she have one she used more than the others?

A. I guess. I really didn't notice.

Q. Do you recall --

A. I didn't notice.

Q. You don't know what it looked like or anything?

A. I believe it was gray, the one I saw her carrying.

Q. Was it large, small, or --

A. It was just a medium-size handbag. It wasn't a shoulder bag. It was one she carried.

Q. Now, where you worked there at CIBA Vision, y'all have work stations; is that right?

A. Uh-huh [affirmative].

Q. And each person works at their work station?

A. Yes.

Q. Okay. And where do you keep your -- where do you secure your personal items while you're at work?

A. We have personal lockers.

Q. Okay. Do they have locks on them?

A. Yes, they do.

Q. Okay. And who provides those locks?

A. The company provides them. They're combination locks.

Q. Okay. And do the supervisors have access to your lockers as well as employees?

A. I suppose they do. I never know.

Q. Okay. You say you suppose they do. I'm not sure I -- do you know they do or --

A. I don't know that the supervisor has the combinations or anything. I just know that they provide them.

Q. Okay.

A. I don't know who keeps up with that.

Q. Now, these lockers, in your opinion, are they secure enough you'd keep large amounts of money in there at work?

A. They're secure, yes.

Q. Okay. If you had a large amount of money, would you feel safe putting them in a locker there and leaving it?

A. Well, I wouldn't do that, no, personally.

Q. Okay. So you don't know of your own knowledge whether or not Ms. Thompson was ever carrying any money to work or not?

A. No, I don't.

Q. Ms. Chance, do you believe that Ms. Thompson would have been keeping large amounts of money in her purse in her locker at work?

MR. DAVIS: Your Honor, I'll object to that. That's purely a matter of speculation, I believe.

THE COURT: Mr. Moore?

MR. MOORE: Your Honor, I believe she can give her opinion based on -- I've asked about the security arrangement, whether she ever saw the money or not, and I believe she can give her opinion based on the facts.

THE COURT: Objection's sustained. What's your next question?

MR. MOORE: No other questions.

THE COURT: Redirect?

MR. DAVIS: I have no questions, Your Honor.

THE COURT: Do you wish this witness to remain on call?

MR. DAVIS: She can remain on call, but she can be excused, Your Honor.

THE COURT: All right. You can come down. Call your next witness.

[The witness stepped down from the stand.]

MR. DAVIS: Your Honor, the state calls Ms. Delores Burel.

[The witness was called to the courtroom.]

MR. DAVIS: Ms. Burel, if you'll please take the witness stand.

[The witness stepped to the witness stand.]

MR. DAVIS: Okay. Before we get started, I'm going to ask you to speak up a little bit so everybody on the jury can hear you. Okay? Please raise your right hand. Do you swear the evidence you shall give in this case now in hearing shall be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS: I do.

Whereupon,

DELORES HIRES BUREL

having been called as a witness and duly sworn, was examined and testified, as follows:

DIRECT EXAMINATION

BY MR. DAVIS:

Q. Please state your name.

A. Delores Hires Burel.

Q. All right.

THE COURT: Would you spell it, too, please?

MR. DAVIS: Spell your last name, please.

THE WITNESS: Pardon?

THE COURT: Would you spell your last name?

THE WITNESS: B-u-r-e-l.

MR. DAVIS: Thank you.

BY MR. DAVIS:

Q. Ms. Burel, how are you employed?

A. I work for Gwinnett County. I drive a school bus.

Q. How many routes do you drive currently?

A. I average three a day.

Q. All right. How long have you been driving a bus for Gwinnett County?

A. Nine years.

Q. Ms. Burel, did you know a lady by the name of Emogene Thompson?

A. Yes, sir.

Q. How did you first meet Emogene Thompson?

A. I lived in Metropolitan Mobile Home Park and she came and asked me to babysit for her son, Michael.

Q. And when was that? How long ago?

A. A little over twenty years ago.

Q. All right. And did you do what she asked you to do?

A. Yes, sir.

Q. And did y'all form a friendship evolving out of that babysitting relationship?

A. Yes, sir.

Q. Okay. How would you describe the nature of the friendship you had with Emogene Thompson?

A. Well, all my family's in Oklahoma City, and I didn't have no family here in Georgia, and we just -- and we had problems, we bonded and told each other our problems, and we become close.

Q. How long had you known Emogene at the time she was killed?

A. Twenty years.

Q. Did you remain in pretty close contact with her that entire time?

A. Yes, sir.

Q. Did you discuss important matters with Emogene Thompson?

A. Yes, sir.

Q. Did y'all confide in each other and share personal matters?

A. Yes, sir.

Q. And some of those were painful matters?

A. Yes, sir.

Q. Ms. Burel, in the months leading up to Emogene's death, how often would you talk to her or see her?

A. Constantly. Through the week, we mostly talked on the phone, and on weekends we went shopping or went to flea markets, yard sales on the weekends.

Q. Ms. Burel, did you have a better friend than Emogene Thompson?

A. No. She was like a sister.

Q. I want to direct your attention to the month of April 1993, the month during which she was killed. At some point during that time, did Jean tell you that she had had some money stolen from her home?

A. Yes, sir.

Q. Did she tell you how much money was missing?

A. At the time she didn't actually know how much was missing, but then later, a few hours, she counted up six, seven, eight hundred dollars at that time.

Q. All right. You said six --

A. Thousand, I'm sorry. Thousand.

Q. Thousand dollars?

A. Yes, sir.

Q. Did she tell you that approximately half the money she had there at the house had been taken?

A. Yes, sir.

Q. And did she also tell you at some point that she had reported the matter to the police?

A. Yes, sir.

Q. All right. Did she tell you about the police responding to her call?

A. Yes, sir.

Q. All right. I want you to tell the jury what she told you about what the officer did when he came out that day to respond to her call.

A. Okay. She said that she -- the officer came out. They sat on the sofa. He helped her count the money that she had and help her figure out how much money she had and how much was stolen, because at the time she didn't exactly know. He helped her figure out -- she paid other bills and all, with it and all and she was trying to --

Q. She helped -- he helped her figure out how much money had been taken?

A. He helped her decide on how much money -- yes, sir.

Q. Okay. Ms. Burel, did you talk with Emogene Thompson on Thursday, April 15 of 1993?

A. Yes, sir.

Q. To your understanding was that the night she died?

A. Yes, sir.

Q. Do you recall how many conversations you might have had with her that day?

A. Well, from four-thirty to eight-thirty, hour of eight-thirty, probably four, five, six different times.

Q. Okay. So you talked to her several times on the phone that afternoon --

A. Yes, sir.

Q. -- and into the evening hours?

A. Yes, sir.

Q. Did Jean tell you that day that she expected to meet with Officer Chapel that night?

A. Yes, sir.

Q. Did she tell you why it was they were supposed to be meeting with each other?

A. Yes, sir.

Q. All right. I want you to tell the jury why they were supposed to be meeting according to what Ms. Thompson told you.

A. The officer told her he had some bills, and he wanted to compare the serial numbers on his bills that he had for the money that she had, the serials on her number -- the serials on the money she had. They wanted to compare them together.

Q. Did Ms. Thompson tell you that she and Officer Chapel had talked about having a meeting at some point?

A. Pardon?

Q. Did Ms. Thompson tell you that she and Officer Chapel had talked about having a meeting?

A. Yes, sir.

Q. To compare the bills?

A. Yes, sir.

Q. All right. Did she tell you when they had had that meeting?

A. Wednesday.

Q. Wednesday, the day before?

A. The day before.

Q. Did she tell you where that meeting took place and how it took place?

A. She told me that he pulled her over the side of the road and told her that he would get with her Thursday before she went to work and compare the bills that she had and what he had together.

Q. All right. Now, when you talked to Emogene Thompson on Thursday, April 15, did she tell you at any point in time that she was expecting a phone call from Officer Chapel?

A. Yes, sir.

Q. Did she tell you what she was going to be doing with the money that she still had at home that night?

A. The money she had with her she was taking it with her to compare the serial numbers on those bills to what the bill -- or the money that he had. They was going to compare the serial numbers together.

Q. All right. And I'm going to show you what's been marked as State's Exhibit Number 78, and I've previously shown that to the defense, and I'll ask you to take a look at this photograph. Do you recognize this photograph, Ms. Burel? Please tell the jury who this is.

A. Emogene Thompson.

Q. Thank you.

MR. DAVIS: Your Honor, at this time, I would tender State's Exhibit Number 78.

THE COURT: Mr. Moore?

MS. ROGAN: We have no objection to that, Your Honor.

THE COURT: State's 78 is admitted without objection.

MR. DAVIS: Your Honor, that's all the questions I have at this time.

THE COURT: Ms. Rogan?

MS. ROGAN: Yes.

CROSS EXAMINATION

BY MS. ROGAN:

Q. Hello, Ms. Burel. Would you like some water or anything?

A. Yes, please. I'm sorry.

THE COURT: Ms. Burel [handing the witness a tissue].

THE WITNESS: Thank you. I didn't think it would bother me seeing a picture. I'm sorry.

BY MS. ROGAN:

Q. I know it's a painful thing to have lost your friend, isn't it? You were friends with Ms. Thompson for quite a long time, weren't you?

A. Yes, ma'am.

Q. I think you testified it was about twenty years?

A. Yes.

Q. Was that right after you had come to Georgia?

A. Not right after coming to Georgia, no.

Q. When did you come to Georgia from Oklahoma?

A. Oh, gosh, thirty years ago.

Q. What did you do before you drove a school bus, Ms. Burel?

A. Housewife, mother.

Q. So this is your first job outside the home?

A. Uh-huh [affirmative].

Q. How far did you go in school?

A. Not too far.

Q. What does that mean?

A. Not too far.

Q. Did you finish high school?

A. No.

Q. Okay. Now, you've told us that you and Ms. Thompson talked on the phone constantly, I think you said.

A. Right.

Q. You talked a great deal on the phone together?

A. Right.

Q. Okay. And you confided things in each other?

A. Right. Yes.

Q. And you knew a lot about each other's lives?

A. Yes.

Q. Did she call you mostly or did you call her? Was there any pattern in --

A. There was no pattern. We'd just call each other.

Q. Okay. Do you remember the name of the company that she worked for?

A. I knew it's at Norcross off of Buford Highway that did something with contacts.

Q. Okay. But you don't remember, for sure, the name of the company?

A. If she told me, it went -- it went through my head. I didn't pay no attention.

Q. All right. So she might have told you and it --

A. Right.

Q. -- you just don't remember it now?

A. The name, right.

Q. Okay. Do you remember the name of the company or the resort that she was investing in up in North Georgia?

A. Not really. I just know it had something to do with vacation and -- now, how do you want me to answer it? Do I know the company? No, I don't know the company or the --

Q. I'm just asking you if you remember what the name was.

A. No. I don't know the people that she --

Q. She mentioned to you that this was something she was doing, though?

A. Well, she --

MR. DAVIS: Your Honor, I'll object. I'll ask to approach the bench at this time.

[Counsel approached the bench and the following conference ensued outside hearing of the jury.]

MR. DAVIS: I thought we pretty well had it worked out where we were going with this hearsay stuff, Judge. I don't know what this is supposed to have to do with the offenses Mr. Chapel is on trial for. It's not the type of thing that's come up at all during any of the conferences we've had over the last two days to deal with this issue. I would object to it. First of all, it's hearsay, and I would object on the basis that it has not been ruled admissible under the exception. And I would object to the relevancy on top of that.

THE COURT: Where are we going? I'm not sure where we're headed.

MS. ROGAN: I'm trying to test her memory of things, which I think is entirely relevant to her credibility as a witness. I don't have any other way to do it. I don't care about the substance of the vacation --

MR. DAVIS: Well, that just happened to be picked out of thin air, I guess, huh?

THE COURT: Well, I guess --

MS. ROGAN: I'm not going to go into anything else about that.

THE COURT: Well, obviously, you've got the right to test her memory on cross about things she knows.

MR. DAVIS: Well, she's trying to do it with hearsay.

THE COURT: Yeah. I think that's the objection, and I guess that's the question, what did she say about this and what did she say about that, when did she tell you this and when did she tell you that.

MR. DAVIS: I mean there's a lot of stuff that she remembers being told by Emogene Thompson that you really don't want to get into.

THE COURT: Well, you know, so it's a --

MR. DAVIS: And if she's going to test her memory, I'll have a chance to rehabilitate that memory.

THE COURT: Well, I don't have a problem with testing her memory. I guess -- I think if it's done on the basis, well, what did she tell you --

MS. ROGAN: Uh-huh.

THE COURT: -- you know, about -- and I understand the difficulty in that what she's saying is what she was told, so what else do you -- but it gets into what else did she tell you. Well, then you're in there with all the hearsay.

MS. ROGAN: Yeah, I know. I know. I know. That's why I tried to tailor it to something that I thought she would have been --

THE COURT: What do you want to ask her?

MS. ROGAN: If she remembers the name and if she had been told at some point what the name was and whether she remembers it now. That's all I want to elicit. Either she does or she doesn't. I don't even care what the name is.

THE COURT: Well, what else --

MR. DAVIS: She already said she doesn't.

THE COURT: What else do you want to ask her?

MS. ROGAN: That's it on that.

THE COURT: Okay. You're going to ask her --

MS. ROGAN: I'm going to ask her about whether she remembers Officer Chapel's name.

THE COURT: About what?

MS. ROGAN: About whether she remembers Officer Chapel's name.

THE COURT: I didn't understand. About what she remembers about Officer Chapel?

MS. ROGAN: If she remembers Officer Chapel's name.

THE COURT: Okay.

MS. ROGAN: That came up during questioning --

THE COURT: All right. But the other question was about what she told her about what?

MS. ROGAN: The name of this resort up in North Georgia.

MR. DAVIS: A timeshare up in the mountains somewhere.

MS. ROGAN: It's just an example.

THE COURT: Yeah. I'll allow that.

MS. ROGAN: Okay.

THE COURT: Yeah. I'll allow that. Go ahead, please.

[Bench conference concluded.]

BY MS. ROGAN:

Q. Do you remember my question, Ms. Burel?

THE COURT: Why don't you restate it?

MS. ROGAN: Okay.

BY MS. ROGAN:

Q. My question was do you remember the name of the vacation area that Ms. Thompson was investing money in?

A. I knew about it, but I do not know the name of the company that she invested with.

Q. Okay. Do you know if -- do you remember if she ever told you that, the name?

A. The name of the company?

Q. Yes.

A. It was -- no, not the name of the company. No.

Q. No, she never told you the name? Or, no, you don't remember if she told you the name?

A. If she told me the name, I don't recall of it.

Q. Okay. So she might have told you, but you don't recall --

A. I knew about it. We discussed it, but far as the name of the company, I don't recall the name of the company.

Q. Okay. Now, Ms. Thompson told you about the money being missing pretty quickly after she discovered it, didn't she?

A. Yes.

Q. And at that point she had not called the police?

A. That's right.

Q. Okay. Do you remember when exactly it was she discovered that the money was missing?

A. About three days after that.

Q. Three days after what, ma'am?

A. The money was missing.

Q. That she told you?

A. No.

Q. My question was do you remember when exactly she told you that the money was missing?

A. Oh, I'm sorry.

Q. That's all right.

A. Okay. When she found the money missing, she called me shortly after that.

Q. Yes. That we know.

A. Right.

Q. My question to you is, did -- how long -- when exactly was that that she told you first?

A. When?

Q. Yes.

A. Oh, Lord. It was three days before she called the police officer to come out, so -- I think that was on the 3rd, so it would have to be probably around the 1st.

Q. 1st of April or so?

A. Right. It was around three days before the officer came out.

Q. Okay. So three days elapsed between the time she discovered the money was missing and the time she called the police?

A. Right.

Q. Okay.

A. I'm sorry.

Q. Was she reluctant to call the police?

A. At the time she found the money missing?

Q. Yes.

A. Yes.

Q. And did you in fact encourage her to call the police?

A. Yes.

Q. That's fine. Ms. Burel, did Ms. Thompson tell you that she believed that her son had taken the money?

A. Yes.

Q. Do you know exactly how she had gotten the money that she had in her home?

MR. DAVIS: Objection, Your Honor. I believe this is hearsay outside the scope of any exceptions that the Court has previously ruled on. I believe also that it's irrelevant to the matters of this trial.

THE COURT: Ms. Rogan?

MS. ROGAN: Well, Your Honor, it's along the lines of what we just had our bench conference about, and I'm simply asking whether she knows or not, whether she remembers that.

THE COURT: I'll allow it. Go ahead.

BY MS. ROGAN:

Q. Do you know, Ms. Burel, how exactly Ms. Thompson had gotten the money that she had in her home?

A. Yes.

Q. And how was that?

MR. DAVIS: Your Honor, I'll object. She got the answer that she wanted to the question that the Court allowed. She got an affirmative response. As I understand the bench conference that we had, it had something to do with testing the witness's memory. She did that. The witness has said that she remembered. That was the subject of the inquiry and that's what Ms. Rogan said that she was going to be asking these questions to determine.

THE COURT: Objection's overruled. Go ahead.

BY MS. ROGAN:

Q. Where was it she got the money, Ms. Burel?

A. She got it from a cancer insurance -- an insurance policy.

Q. Excuse me?

A. A cancer insurance, insurance policy.

Q. Insurance policy.

A. Okay.

Q. Okay. Do you remember the name of the insurance company?

A. No.

Q. And you never actually saw the money that she had gotten; isn't that right?

A. Did I actually see it with my eyes? No.

Q. That's my question.

A. No.

Q. Do you remember telling Investigator Tkacik, who was the person who came to your sister-in-law's house -- is that -- was the interview with him at your sister-in-law's house on April 16?

A. I do not recall the person that came out that day, but I do recall talking to an officer, a detective, that came out that day.

Q. Okay. Do you remember telling him that you did not actually know she had the money until she told you that half of it had been missing?

A. I knew she had some money, but I didn't know how much or that she got it all.

Q. Or that what, ma'am? What was the last part of your answer?

A. What you mean?

Q. You said you didn't know she had --

A. I didn't know how much she had --

Q. Uh-huh.

A. -- and when she got it.

Q. You didn't know how much she had --

A. Right.

Q. -- or when she got it?

A. Right.

Q. Okay. You found out how much she had and when she got it when she told you half of it was missing?

A. Right.

Q. Now, once she had called the police, Officer Chapel responded; is that correct?

A. Yes.

Q. Okay. She told you that?

A. Yes.

Q. And she told you his name?

A. She told me his name, but I just let it go in one ear and out the other one. I called him officer. I just kept calling him officer. Even knowing it was Mike Chapel, I just said officer.

Q. Okay. I think you said that it just went in one ear and out the other; is that what your answer was?

A. No. I did not use his name at the time. I knew it was Mike Chapel, but I didn't say Mike Chapel. I said officer.

Q. What are you referring to, ma'am? I didn't -- I wasn't asking you if you'd used his name at all. I was asking you if you knew -- if she had told you what his name was.

A. Yes. Mike Chapel.

Q. Okay. When is it you're saying you didn't use his name?

A. When -- like when I was talking to the detectives that came out, I told him his name, but I still used 'officer' instead of saying his name.

Q. Okay. And that day that the investigator came out to speak to you, you told him that your memory is bad and you didn't actually remember his name, Mr. Chapel's name.

A. No. What I said was when he came out that I knew his name, but I didn't remember it just like that. I had it wrote down. Marsha wrote it down for me because I kept forgetting his name. I just kept saying officer, but I knew it, but I just --

Q. You knew it, but you didn't remember it?

A. Right.

Q. My question was, you had been told what his name was by Ms. Thompson?

A. Yes.

Q. Okay.

A. When he came out.

Q. Okay. And then on April 16, when Investigator Tkacik was interviewing you, even though you say now you knew his name, you couldn't remember what it was?

A. Are you sure it was the 16th? Let's see. Jean died on the --

Q. 15th.

A. -- 15th. That was Thursday.

Q. That was a Friday.

A. And she died Thursday night.

Q. Thursday was the 15th.

A. Okay. He came out Friday.

Q. He came out --

A. Was Friday the 16th, then?

Q. Yes.

A. Okay. Yes.

Q. Okay. And he tape-recorded it --

A. Yes.

Q. -- the interview he had with you?

A. Yes.

Q. Okay. Do you remember telling him at that interview that your memory is bad?

A. On some things. Yeah. Yeah.

Q. My question, ma'am, is do you remember telling him that?

A. [No response]

Q. Do you remember telling the investigator that your memory is bad?

A. That my memory was bad? On -- I probably did. On certain things. Yes, I'm sure I did.

Q. And you mentioned before, you had Marsha write the name down for you?

A. Because I could not pronounce the name. I couldn't pronounce it.

Q. My question, ma'am, is you had Marsha write the name down for you?

A. Yes, because I could not pronounce it and could not remember how to pronounce it --

Q. And that was earlier in the day on the 16th?

A. Yes. If I get my days correct, yes.

Q. Okay. So you'd spoken -- by Marsha, you mean Marsha Smith, who is now known as Marsha Arnold?

A. Right.

Q. Okay. She was here earlier today --

A. Okay.

Q. -- and you were sitting out there with her waiting to testify, weren't you?

A. Yeah.

Q. Okay. So you'd spoken to Marsha earlier in the day on the 16th?

A. That evening.

Q. Okay. Prior to the time you spoke to Officer Tkacik --

A. No, it was --

Q. By 'prior to' I mean before the time.

A. It was before I talked to the detective, yes.

Q. Yes. Okay.

A. Yes.

Q. Okay. And during the interview, you had the piece of paper in front of you that she'd written the name down for you?

A. Yes.

Q. Okay. And Marsha knew Officer Chapel?

A. Yes.

Q. Okay.

A. Jean told me.

Q. Officer Chapel had helped Marsha out with a problem involving her daughter, hadn't he?

A. Yes.

Q. Okay. And that had worked out very well for them?

A. Yes. Jean -- that's why Jean trusted him.

Q. Now, I'd like to direct your attention to the night of April 15. You told us that you talked to Ms. Thompson four, five, six times that night --

A. Yes.

Q. -- on the telephone from the time you got off the bus at four-thirty up until eight-thirty?

A. Close around eight-thirty, yes.

Q. All right. Now, Ms. Thompson worked at night, didn't she?

A. Yes.

Q. Okay. She'd leave for work around nine-thirty or ten o'clock?

A. She usually left around ten o'clock --

Q. Okay.

A. -- unless the weather was bad or something.

Q. Okay. So she would sleep during the day?

A. Yes.

Q. Do you remember exactly how many times you spoke to her that night?

A. No.

Q. Do you remember what time Ms. Thompson got up that afternoon or early evening?

A. I would say I probably woke her up when I got home that evening. Around four-thirty, I woke her up.

Q. Okay. And then did you talk for a little while and she went back to sleep?

A. Yes. I told her to go back to sleep and I'd call her back.

Q. Okay. And then you called her back. Do you remember what time you called her back?

A. No. Just constantly calling her back to see if she got her phone call.

Q. You talked to her almost continuously throughout that evening?

A. Right. On different things, but we talked.

Q. Do you know what Ms. Thompson had for dinner that night?

A. No, because she eat very -- very little.

Q. She ate very little?

A. In the evenings.

Q. She didn't mention anything to you about what she had for dinner that night?

A. No.

Q. So if she'd gone out for dinner between seven and eight-thirty --

A. Pardon?

Q. If she had gone out of the house, left the home, to go out to dinner with her son between seven and eight-thirty, you couldn't have been talking to her during that time?

A. If she went out, no, I couldn't.

Q. And it's your testimony that you were talking to her during that time period?

A. I was talking to Jean constantly from four-thirty to eight-thirty. I never did look at the clock. I let her go back and sleep, take a rest, or whatever, and then I'd call her back. I didn't look at the clock how I paused between each time.

Q. Okay. But she couldn't have been gone between seven and eight-thirty --

A. No, I didn't say that.

Q. -- because that was the time you were talking to her.

A. I said I talked to her different times between four-thirty to eight-thirty, and I never did look at the clock to see exactly what time I talked to her.

Q. I understand that's what you said, Ms. Burel.

A. But I can't say it was from seven-thirty to eight-thirty because I never did look at the clock to see if it was that time.

Q. Well, is it safe to say that if you started talking to her at four-thirty, you talked to her up until seven o'clock perhaps --

A. I can't --

Q. -- a couple of times?

A. I cannot say, because I didn't look at the clock. I just talked to her constantly from four-thirty to eight-thirty. I'm not saying exactly eight-thirty, but around eight-thirty.

Q. Around eight-thirty?

A. I can't say -- I mean, how many times or what time because we'd talk for quite a while on the phone and then hang up.

Q. Ms. Burel, given the frequency with which you talked to her that evening, you -- wouldn't you have known if she had gone out of the house for an hour and a half?

A. Not -- no.

Q. So if she were gone between seven and eight-thirty, how is it that you were speaking to her constantly up until eight-thirty that night?

A. Because when I called her and talked to her, she was there.

Q. I understand that. Was there ever a time between -- after seven p.m. or into the evening when you called her and she wasn't there?

A. No.

Q. So each time you called her that evening --

A. She was there.

Q. -- she was there?

A. Right.

Q. Up until eight-thirty, which was, as you've told us, the last time you spoke to her?

A. Around eight-thirty.

Q. And when you spoke to her around eight-thirty that night, she had not heard from Mr. Chapel; is that correct?

A. Not at that -- right. Not at that time.

Q. Now, you've told us that she was carrying money with her that night, the remaining money with her, because she was going to be meeting with Officer Chapel. Was that your testimony?

A. Yes.

Q. And she was going to be comparing bills with bills that he said he had to compare serial numbers?

A. What she had with what he had, yes.

Q. How many bills was it that he supposedly had?

A. He told her earlier, a week before that, he had four $100 bills and a fresh wrapper that he --

Q. Okay. So it's four $100 bills?

A. Around $400, uh-huh [affirmative].

Q. It wasn't just a single $100 bill?

A. Four $100 bills.

Q. Okay.

A. It was hundred dollar -- fresh bills that he's supposed to had.

Q. Brand new bills?

A. That's the way I understood.

Q. You spoke to the police on two occasions shortly after the time that Ms. Thompson was killed; isn't that correct?

A. They come to my sister-in-law's and to my -- yes.

Q. And so one was April 16, the one we've just been speaking about, and the next one was on April 20?

A. I don't remember the date on the second one.

Q. Do you remember that two officers came out?

A. Yes.

Q. Okay. One was officer Tkacik, who you had already spoken to?

A. I don't remember the officers' names that come to the house. They just --

Q. Was it the same man who you had just seen four days earlier --

A. No.

Q. -- even if you don't remember his name?

A. No.

Q. It was a different man?

A. Oh, Lord. I don't -- it seems like there was -- there was one officer that came out to the house the first time I talked, and that was at my brother-in-law's and sister-in-law's home. That was one officer. And then they came back and talked again, and there was two detectives then.

Q. Okay.

A. But far as names, I don't remember the names.

Q. Okay. I won't press you on remembering names.

A. Please.

Q. The second time that -- when two officers came out, was one of them the same one who'd come out on the Friday night before?

A. To be honest, I don't recall.

Q. You don't remember if it was the same officer?

A. No, not at that time. I was scared at that time.

MS. ROGAN: One moment, Your Honor. I'm sorry. We've got technical difficulties.

[Pause in proceedings]

BY MS. ROGAN:

Q. Ms. Burel, I'm going to show you what's been marked as Defendant's Exhibit 51 and Defendant's Exhibit 52. Do you recognize these documents, ma'am?

A. These are the ones they gave me last -- when we had a hearing.

Q. Okay.

A. Okay.

Q. Do you recognize them?

A. They look -- the first page and all looks okay.

Q. Okay. I'm surely not going to trick you. These are transcripts of tape recorded interviews --

A. Okay.

Q. -- that the police conducted with you, one on April 16 and one on April 20; is that correct?

A. Okay.

Q. Okay. Have you had a chance to review these previously?

A. I've went over it. I went over some of it, yeah.

Q. Okay. I'd like you to -- well, my question is whether you recall telling the police during either of these two interviews that Ms. Thompson was going to be carrying her money with her that night, the night she was killed?

A. Do I recall saying that?

Q. That's correct. That is my question. Do you recall telling the police that she was going to be carrying the money with her?

A. She'd told me she was taking her money with her to compare the bills that she had with what the officer had, compare the serials numbers together. Yes, she told me that.

Q. I understand that's what your testimony today is. My question, ma'am, is do you remember telling the police --

A. Do I remember that?

Q. -- that fact, during either one of these two interviews?

A. No. That's been two years ago. I know she did, and I know I told them that she was meeting with him to compare the bills and the money together.

Q. I'm aware that's what your testimony today is, ma'am. That's not my question. My question is do you remember telling the police that during either of the two interviews?

A. Yeah. I'm sure I did.

Q. Okay. I'd like you to look through these two documents, please, and tell me if it refreshes your recollection as to whether you told the police at that time that she was going to be carrying the money with her.

A. Are you wanting me to say that I'm saying that she had the money on her. Is that the words you want me to say that I said to the officer?

Q. My question, ma'am, is whether you told them anything about her carrying money with her that night.

A. Yes. I told them that she was carrying the money to compare the bills with the bills that Chapel had, yes.

Q. Well, I'm asking you, then, to please look through the documents and see where it is you told them that.

A. Okay.

Q. Would you like me to --

A. Yes, please do, because I've repeated so much three or four times in my statements. I don't know what you -- maybe you can show me what you want me to --

Q. If you could focus on Page 7, in particular, of Exhibit D-51, which is the statement from April 20, 1993.

THE COURT: Would you approach the bench, please?

[Counsel approached the bench and the following conference ensued outside hearing of the jury.]

THE COURT: Maybe now's a good time to take a short recess --

MS. ROGAN: All right. I'm sorry this is taking -- there's no other way I can do it.

THE COURT: -- and give her an opportunity to go through it and then we'll come back to it and we'll commence on it.

MS. ROGAN: That would be fine with me, Your Honor.

THE COURT: Okay. Well, we'll take ten minutes and then recommence.

MS. ROGAN: All right.

[Bench conference concluded.]

THE WITNESS: Are you --

THE COURT: All right. Just a moment.

THE WITNESS: I'm sorry.

THE COURT: Just a moment. I believe we'll pause for ten minutes at this point and take a ten-minute recess. We will then recommence. I think we'll skip the Cokes and that sort of thing. This will be a ten-minute recess and then we'll recommence. If you'll go with the bailiff, please.

[The jury was excused from the courtroom for the recess.]

THE COURT: Let's take ten minutes. In the meanwhile, Ms. Burel, you can -- during the course of the ten minutes, take a look at those. And you might make sure she has the documents and is aware of the portions of the documents that you're interested in, and make sure she understands.

MS. ROGAN: Yes. Yeah. I mean --

THE COURT: And you can recommence with the examination of the witness when we return.

MS. ROGAN: All right.

THE COURT: All right. Anything else at this point, Ms. Rogan?

MS. ROGAN: No, Your Honor.

THE COURT: Mr. Davis?

MR. DAVIS: No, sir.

THE COURT: We'll take ten minutes.

[Break taken]

THE COURT: Ready, Ms. Rogan?

MS. ROGAN: I'm ready.

THE COURT: Mr. Davis?

MR. DAVIS: Yes, sir.

THE COURT: And our witness is ready and has had the opportunity to review them?

MS. ROGAN: I think so.

THE COURT: Okay. Bring the jury back, please.

[The jury returned to the courtroom and proceedings continued as follows.]

THE COURT: Go ahead, Ms. Rogan.

MS. ROGAN: Thank you, Your Honor.

CROSS EXAMINATION -- Resumed

BY MS. ROGAN:

Q. Ms. Burel, have you had a chance to review the transcripts of the statement, the interviews, that you gave to the police officers that night?

A. I see what you're saying now. That's been -- I see what you're trying to say.

Q. Okay. So --

THE COURT: Would you restate your question?

BY MS. ROGAN:

Q. My question is do you remember telling the officers that she was carrying the money with her that night?

A. What I was saying was that she made a statement she had the money with her at all times. Didn't necessarily say it was on her, but it was with her. So like I said in the statement, there was times she says, 'Well, it's with me.' And I said, 'With -- on you?' And she'd say, 'It's with me.' And I just took it for granted it was with her. It could have been in her car, it could have been in her pocketbook, it could have been in her clothes, but it was with her.

Q. That's -- my question then is, you didn't know at that point, when you were talking to the investigators, whether she had it in her purse that night or not?

A. No, that -- I said that she had it -- she had it -- she said she had it with her.

Q. I understand that's what you're saying, but on Page 7 in this statement you told the investigators that you didn't know whether she had it in her purse or not?

A. Not in her purse, but she said she had it with her.

Q. Okay. That's my question, Ms. Burel.

A. Okay.

Q. You didn't know whether she had it in her purse or not?

A. Okay.

Q. Is -- I don't want --

A. Not in her --

Q. -- to put words into your mouth. I'm asking you what you told the investigators that night.

A. What I said, I did not know if she had it in her pocketbook, but I knew she had it with her.

Q. In fact, during this statement that you gave, you said you couldn't figure out how someone could fit that much money inside their pocketbook?

A. Well, I didn't know exactly how -- how she had it. I didn't know if she had it in hundred bills, thousand dollar bills. I didn't really question her how she --

Q. My point is, Ms. Burel, on Page 7 of that interview, you said --

A. I couldn't figure out how she'd had that on her.

Q. You couldn't figure out how she could have had --

A. Right.

Q. -- that much money in her purse?

A. Because I didn't know how -- how she --

Q. Okay. What did Ms. Thompson's purse look like, Ms. Burel?

A. I don't know. She had a few different ones.

Q. Was there one that she used more often than another?

A. Depends on the circumstances. If she's every day going to work, she had a gray one she's carrying around with her. She had a black one she carried around with her. Just different occasions, different pocketbooks.

Q. Okay. So you remember a gray one and a black one?

A. I remember different ones, just --

Q. Okay.

A. She went through pocketbooks quite a bit.

Q. Now, you did not see Ms. Thompson leave for work that night?

A. No.

Q. You weren't with her that night?

A. No.

Q. You were just talking to her on the phone. And you don't have any personal knowledge, from having been with her and observed her, as to whether she had her purse with her that night?

A. No. I can't say she had a pocketbook.

Q. And at the time that you rang off with her, finished your phone conversation with her at eight-thirty that night, Officer Chapel had not called her?

A. That's right.

Q. So as far as you know, she never had a meeting with him that night arranged?

A. The last I talked to her, he had not called her.

Q. Okay. That's all I have for you. Thank you, Ms. Burel.

THE COURT: Redirect?

MR. DAVIS: No questions, Your Honor.

THE COURT: Do you wish Ms. Burel to remain on call?

MR. DAVIS: Yes, sir, I do.

THE COURT: All right.

MR. DAVIS: But I'd like for her to be excused.

THE COURT: You'll remain on call. You can come down.

[The witness stepped down from the stand.]

THE COURT: Call your next witness, please.

MR. SMEAL: Your Honor, I'll be handling the next several witnesses for the state. The state would call Valerie Heath.

[The witness was called to the courtroom.]

MR. SMEAL: Please come forward, ma'am. If you'll have a seat.

[The witness stepped to the stand.]

THE COURT: If you'll administer the oath, Mr. Smeal.

MR. SMEAL: Please raise your right hand. Do you solemnly swear the testimony you're about to give in the matter now pending before the Court will be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS: I do.

Whereupon,

VALERIE HEATH

having been called as a witness and duly sworn, was examined and testified, as follows:

DIRECT EXAMINATION

BY MR. SMEAL:

Q. Please state your full name and if you'd spell your last name for the court reporter, please.

A. My name is Valerie Heath, H-e-a-t-h.

Q. And where do you currently reside, ma'am?

A. Findlay, Ohio.

Q. Okay. And you have come to Atlanta for the purpose of testifying in this case; is that correct?

A. Yes. Yes.

Q. Directing your attention, ma'am, back to April 1993, did you live in the Atlanta area at that time?

A. Yes, we did. We lived in Suwanee.

Q. Okay. And were you employed at that time?

A. Yes, I was.

Q. Where were you working?

A. Sunshine Car Wash.

Q. And where was that located?

A. 425 West Pike in Lawrenceville.

Q. All right. What was your position or what was your -- what were your duties with the car wash?

A. I was the manager, which entailed a lot of duties: Hiring, firing, purchasing, cashiering, a variety of things.

Q. Who owned the business at that time?

A. My brother-in-law.

Q. Okay. Ma'am, I want to direct your attention to the morning of April 16, 1993, and ask you if you recall working on that day?

A. Yes, I do.

Q. All right. And directing your attention to the morning hours, do you recall a customer at your car wash that morning who happened to be a police officer?

A. Yes, I do.

Q. Okay.

MR. MOORE: Your Honor, might we approach on this?

THE COURT: Yes, sir.

[Counsel approached the bench and the following conference ensued outside hearing of the jury.]

MR. MOORE: It appears that Mr. Smeal's offering a copy here of a receipt and I don't know why he's offering a copy instead of the original of that.

THE COURT: May I see it?

MR. SMEAL: I believe it's the original document. It's not a copy.

MR. MOORE: It's the original receipt from the car wash?

MR. SMEAL: It's a computer printout.

MR. MOORE: On a page that size for a receipt from a car wash?

THE COURT: It looks like a --

MR. MOORE: It looks like a copy to me, Your Honor.

THE COURT: It looks kind of like a pin writer or something, like a dot matrix printer or something.

MR. MOORE: I can't imagine they'd use a piece of paper that size to print a receipt at a car wash.

THE COURT: I don't know.

MR. SMEAL: Well, she can explain it, but it was printed out on the car wash computer.

THE COURT: Yeah. Well, this is not Scientific Atlanta, I guess.

MR. MOORE: When was it printed out? Was it something that was printed out at the time or was it something generated since?

MR. SMEAL: I believe it was printed out back in April 1993.

THE COURT: You'll have her on cross.

MR. MOORE: Well, I just don't want him displaying something to the jury, Your Honor, if it's not in fact the original receipt. I mean, you know, he doesn't seem to know whether it is or not for sure. He thinks it is.

THE COURT: Well, all that's going to be a matter of foundation before it comes in.

MR. SMEAL: I'm about to show her the document and ask her to explain it and identify it.

THE COURT: Yeah. Okay. Well, you'll have to offer it before it's published or admitted, so --

MR. SMEAL: All right.

THE COURT: -- if there's not a foundation, you can make your objection.

[Bench conference concluded.]

THE COURT: Go ahead, Mr. Smeal.

BY MR. SMEAL:

Q. Ma'am, I'm showing you what's been marked for identification purposes as State's Exhibit 79. Can you identify that document?

A. Yes.

Q. And if you need to take it out of the plastic sleeve, you may do that.

A. No. I've seen hundreds of them.

Q. All right. And what is that document?

A. It's a receipt that's given to the customer at the time of the car wash.

Q. Okay. And what is the date on that document?

A. April 16, 1993.

Q. Okay. And have you seen that particular document before?

A. Yes. Yes.

Q. Okay. Did you provide that document to the police?

A. Yes, I did.

Q. Okay. And how was that document -- where did that document come from? In other words, how was it generated or how was it provided?

A. Well, we can go back into the computer and put in a certain day and then you can print it, so that's what it -- this is probably on computer paper, but it is representative of what comes from -- what's given to the customer as a receipt.

Q. Okay. Does the customer who comes into the car wash at the time, was he provided with a receipt?

A. When he was given his change, you mean?

Q. Yes.

A. Yes. A receipt automatically comes out.

Q. Okay. And does the computer used by the car wash also retain the information as far as the transaction and the date and the amount?

A. Yes. It retains everything. It's a car watch system. That's exact -- it's geared just for car washes.

Q. Okay. And does that mean that at a later time that receipt information can be generated from the computer?

A. Yes.

Q. And would the information that was entered into the computer have been entered at the time of the transaction?

A. Correct.

Q. All right. So is this -- is this document, then, a record that's kept in the regular course of the car wash business?

A. Yes.

Q. And you're familiar with that system?

A. Yes.

Q. You were at the time?

A. Yes.

Q. You were the manager of the store?

A. Yes. Yes.

Q. Okay. Ma'am, directing your attention to the transaction which that receipt reflects, would you describe the police officer who came in that morning?

A. He was big, very tall, 6 foot 4, 6 foot 5. He had dark hair, and his hair appeared to be moussed or I don't think they grease hair any more, but gave that appearance, and he was wearing some kind of a -- elastic or something on one of his arms, like a band.

Q. All right. Was he in uniform?

A. Yes, he was.

Q. Okay. Was the vehicle that he was driving a marked police cruiser?

A. Yes, it was.

Q. Was there anything else in particular you noticed about his appearance?

A. Just that he was very large, very muscular.

Q. Okay. What race was he, for example?

A. White male.

Q. Do you see that person in the courtroom today?

A. Yes, I do.

Q. Would you point to him, please?

A. Sitting right there [indicating] at the table with the glasses and centered between the lady and the man.

MR. SMEAL: I'd ask that the record reflect that this witness has identified the defendant, Your Honor.

THE COURT: It will so reflect.

BY MR. SMEAL:

Q. Ma'am, that morning, what type of car wash did the defendant order?

A. He got the highest priced car wash that we offer. In other words, there's car wash one, two, three, and four, and as you go up in number, the service is much more with each car wash.

Q. Okay. Could you briefly describe the four levels and what you would receive for that for each car wash?

A. Okay. The number one car wash, you just get the basic car wash and vacuum. Number two car wash, you get the basic car wash, your vacuum, your polish wax, and sealer wax. Car wash three, you get all of those that I just mentioned, plus you get air freshener and wheel bright. Then on the fourth car wash, you get all that I just mentioned, plus Armor-All on your tires and complete Armor-All in the interior, and if you have a vinyl top, a complete vinyl -- on the vinyl top on the exterior.

Q. Okay. And did the defendant receive that number four service on his police vehicle that morning?

A. Yes, he did.

Q. Okay. And how did he pay for that service?

A. He paid me in cash.

Q. Okay. Do you recall -- but, first of all, what was the -- what was the fee for that service?

A. $19.95.

Q. Okay. And do you recall the denomination of currency that he used for that payment?

A. Yes. He gave me a hundred dollar bill.

Q. All right. And did you give him the change? I assume you did.

A. Yes, I did.

Q. Okay. And does that receipt reflect how much he received back?

A. Yes, it does.

Q. And how much did he receive back?

A. He got -- well, I gave him $2 off of his car wash because I do that for police officers, and he received $82.05 back.

Q. Had you ever met or seen the defendant before that date, to your knowledge?

A. No, never.

Q. Okay. To your knowledge, do you know whether he had ever used that car wash service prior to that date?

A. I don't know.

Q. Had other police officers used that car wash or was it a place, in other words, that the police used on a regular basis?

A. Many of them did. Gwinnett, Lawrenceville, state police.

Q. Did you consider there to be anything unusual about that transaction?

A. Only for the fact that he was a police officer and, for one thing, he gave me a hundred dollar bill, you know.

Q. All right. Was there anything else unusual about the transaction?

A. No, other than the fact that he got a real expensive car wash.

Q. Why was that unusual?

A. Because that's a city car. All of the -- none of the police officers get an expensive car wash. Some get exteriors for $3.95 which includes no vacuuming, and then most of them just get the $7.95 car wash, and they know they're going to get a discount, you know, because that's what I always do, so they just get the cheaper car washes.

MR. SMEAL: Nothing further, Your Honor.

THE COURT: Mr. Moore?

CROSS EXAMINATION

BY MR. MOORE:

Q. Ms. Heath, my name's Johnny Moore. I represent Mike Chapel. I have some questions I wanted to ask you. With regard to this printout, which is State's Exhibit Number 79, can you tell us when that printout was done?

A. I don't recall. After almost two and a half years, no, I really don't. It wasn't long after. I mean, it was within a reasonable amount of time.

Q. Was it before or after you talked to the police when they came out and talked to you the first time?

A. I believe it was after.

Q. Okay. Do you recall the police coming out and talking to you the first time on April 28, 1993?

A. Vaguely. It was a long time ago.

Q. Now, your car washes that you talked about, your different car washes, the number four car wash, do they do anything to the interior other than Armor-All the plastic surfaces and vacuuming?

A. Air freshener.

Q. Air freshener. Okay. Do they do anything to the seats other than vacuum them?

A. Armor-All them.

Q. Armor-All -- if they're cloth seats, they Armor-All --

A. No, if they're vinyl or leather.

Q. Okay. If there were cloth seats in the car involved though, they wouldn't put Armor-All on them, would they?

A. Right.

Q. Okay.

A. Correct.

Q. I'm not trying to be ridiculous. I realize if you've got plastic seats, you probably would Armor-All them. Now, is there any way to tell from State's Exhibit Number 79, that receipt there in front of you, who that receipt was for? Is there anything on the receipt that identifies who the customer was?

A. No.

Q. How is that data entered in the computer?

A. It automatically is put in -- as I mentioned, it's a -- it's called a car wash system which is geared, the whole computer system is geared for car washes. Everything is tied into the terminal where the cashier stands and takes the money. So, in other words, when you drive in the car wash, there's a sister terminal in the back, and you punch it in there, which feeds it to the cash register. And then when the number is entered on the car, then it -- it goes on its way.

Q. Okay. Now, you don't have any reason to routinely go back and pull receipts for any reason, do you? I mean, unless it's for bookkeeping or taxes or something like that. You don't go back and pull them just to see who came in last week?

A. No.

Q. Okay. And this is not an original receipt. It's on a 9 by 11 piece of paper.

A. That's correct.

Q. It was something that was generated later, somebody went back and looked for it?

A. That's correct.

Q. Was that you that went back and looked for it or did --

A. I believe it was, uh-huh [affirmative].

Q. You say you believe it was. Do you remember it?

A. Well, I -- it was. It was.

Q. You wouldn't have any reason to be going back and looking for it before the police came to see you, would you?

A. No.

Q. And you don't go back and look at your records just for the fun of it or anything?

A. It depends. If -- if there's a reason to go back, I go back. If there's not, then I don't. But just to see who had their car washed, no.

Q. Okay. I'm going to show you what's been marked as Defendant's Exhibit Number 53 and ask you if you can identify that document. If you'd look at it. Would you read this statement, please. I mean, can you identify it first?

A. Yes.

Q. You recognize the document?

A. Yes.

Q. Okay. Is that a copy of a statement you gave to the police back on April 28, 1993?

A. Yes, it is. It's got my signature on it, but I didn't write it.

Q. Okay. But would you read it and see what it says?

A. Out loud?

Q. No, ma'am. Read it to yourself.

A. Okay. [Reads document]

Q. Now, the date on your receipt is April 16; right?

A. Correct.

Q. Okay. And the date on the statement for the -- that was given the police is April 28? It's down at the bottom on the front page.

A. Correct.

Q. Okay.

A. Correct.

Q. Now, on April 28, 1993, you told the police that the police officer gave you a twenty dollar bill; correct?

A. That's incorrect.

Q. You didn't tell them that?

A. I said he gave me a hundred dollar bill.

Q. Okay. So the police didn't write down what you told them?

A. That's correct.

Q. Okay. You signed that, didn't you?

A. That's correct. I sure did.

Q. Did you read it when the police gave it to you before you signed it?

A. I think that I just -- I had just made the statement so I just breezed over it.

Q. So you didn't read it before you signed it?

A. Probably not.

Q. Okay. Do you know of any reason why the police would write down twenty dollars if you told them a hundred dollars?

A. I have no idea.

Q. You also told them you gave change, didn't you?

A. He didn't receive change -- he did receive change.

Q. Are you telling us you remember it better today than you did twelve days after the transaction in 1993?

A. No, I sure don't. But I'm married to a policeman and we never had hundred dollar bills. I guess that's why it's sticking in my -- why it stuck in my brain. And at the time, I commented to the officer about that.

Q. But he wrote down $20 and $2 change.

A. I don't -- sir, I'm sorry what this man wrote down. He gave me a hundred dollar bill.

Q. But you signed that document there?

A. I sure did. I did.

Q. And you didn't have to go back and check your records or anything to know that it was a hundred dollar bill?

A. Absolutely not.

Q. Why did you go back and get the receipt then?

A. Well, I do believe it was when the officer came in and they were investigating. I don't recall how the -- how they knew or what. I don't recall how the whole thing began, actually.

Q. Did the police come back more than once?

A. I think they did. I think a couple of times.

Q. Okay. And was that after you gave this statement?

A. Did they come back after I gave this original statement?

Q. Yes, ma'am.

A. They might have. They might have, and it was quite possible that they did, but I don't recall.

Q. Okay. You don't recall when they ever came back and told you that it wasn't a twenty dollar bill and might have been a hundred dollar bill?

A. No one ever said that to me.

Q. Okay. Well, then why would someone have pulled this receipt from your business?

A. I have no idea. I have no idea. I mean, I'm really shocked to see that there, actually. Very shocked.

Q. Do you remember any of the other transactions on that date, April 16, 1993?

A. No.

Q. Did you check any other receipts on that date?

A. No. I don't believe I did.

Q. So you don't know what other receipts you may have had on that day?

A. Well, probably, at the time when I was looking for this one, they were all viewed at one time. Back then, there was not much business at the car wash.

Q. Okay. You say probably. You don't have any independent recollection of what to look for, do you?

A. No. No.

Q. You don't know what business was done on that day in 1993?

A. No, I sure don't, but probably not much.

Q. Okay. On this Defendant's Exhibit Number 53, there's a portion of this statement here that's got initials on it and it's got something different written in there. Do you seem what I'm talking about?

A. Uh-huh [affirmative]. Wait a minute. Let me see on this one here. Probably -- what -- oh, well, here.

Q. Okay. Are those your initials?

A. Yes.

Q. Okay. That change that's written in there is in a different handwriting. Did you write that or did the officer write it?

A. I wrote the part that was placed above there, yes.

Q. Okay. So you read that sentence then?

A. Uh-huh [affirmative].

Q. Is that correct?

A. What do you mean I read it? Just now?

Q. No. I mean, you read it at the time, since it's got your initials on it and it's got a change in your handwriting.

A. I think what happened, if I remember correctly -- no. I'd better not say because I don't remember correctly. No. Okay.

Q. Okay. You had to have read it --

A. Yes.

Q. -- to make changes in it and put your initials on it?

A. Correct.

Q. Okay.

A. Correct.

Q. But you're telling us you didn't read the line up here above it, but you read this line and put your initials and made changes on it?

A. I guess that's what I'm saying.

Q. Okay. Do you have any explanation for that? I mean --

A. No, I sure don't. I sure -- I don't.

Q. I'm going to show you State's Exhibit Number 1, which is a calendar for April 1993, which has been admitted into evidence previously, and ask you if you can tell us what day of the week the 16th fell on?

A. Friday.

Q. That was Friday?

A. Uh-huh [affirmative].

Q. Okay. Now, when you talked to the police, that was on a Wednesday, the 28th; is that correct?

A. Uh-huh [affirmative].

Q. Okay. Now, I'm going to ask you to look at this statement again, Defendant's Exhibit Number 53, looking at the top here and the left. Are those your initials?

A. Yes.

Q. Okay. Looking at the bottom right-hand corner here, are those your initials?

A. Uh-huh [affirmative].

Q. And the top left-hand corner here again, are those your initials?

A. Yes.

Q. And then your initials are here where you made a change in the document?

A. Uh-huh [affirmative].

Q. And then your initials again at the end of the document?

A. Yes.

Q. And then your signature at the end?

A. Correct.

Q. Okay. Didn't you place your initials there to indicate that you had read that document?

A. I don't recall what the explanation for the initials. No, I mean, I can't say that that's why I initialed it.

Q. Didn't the police officer ask you to initial it to show that you had read it and you understood it?

A. I think he asked me to sign it. Like I said, I don't understand why all the initialing.

Q. Do you remember why he told you to put the initials on there?

A. No, I don't. Other than where I added the sentence at the -- I mean, whenever you add something, whether -- you know, you always initial it.

Q. Okay. But you initial things like this and then sign it, and you don't recall the officer telling you to do that to show that you had read it?

A. No. I don't recall the explanation for the initialing. I don't.

Q. Okay. And you don't know when you went and got this State's Exhibit Number 79?

A. No, I don't -- I don't really recall when I got this.

Q. You don't know why you got it?

A. Well, I imagine, because maybe the police officer asked me to -- I don't recall -- no, I can't answer that.

Q. So you really don't remember very much at all about what happened in April 16, 1993, do you?

A. The particulars, I don't, but I know that he came in and got a car wash.

Q. I'm going to show you again Defendant's Exhibit Number 53 and it begins with 'Wednesday or Thursday last week'; is that what it says?

A. Yes.

Q. Okay. Is that correct?

A. At the time, I guess I thought that was correct.

Q. Okay. Is it correct, is my question?

A. No, I guess it's not correct.

Q. Okay. And --

A. You know, it seems to me -- I don't know. I'm wondering if this was not -- if they didn't make a phone call and just part of this was taken over the phone or something --

Q. They took your signature over the phone? Your initials --

A. No. Then they came in.

Q. Now, reading the body of the statement, don't you tell them that you'd seen something in the paper about it?

A. Yes. I do believe that I stated that I saw a picture of his paper after he was arrested.

Q. And that was before they interviewed you?

A. I think that was maybe the day of the day they interviewed me.

Q. But you had read about it in the paper before you gave this statement?

A. Yes.

MR. MOORE: That's all I have. Thank you.

MR. SMEAL: Just a few questions, Your Honor.

THE COURT: Yes, sir.

REDIRECT EXAMINATION

BY MR. SMEAL:

Q. Just a few more questions and then I'm almost done. When you were interviewed by the police on April 28, 1993, were you aware of the fact that this was part of a murder investigation?

A. I believe I was.

Q. All right. And that interview occurred approximately twelve days after the incident itself, the car wash itself; is that correct?

A. Correct.

Q. And do you have any idea how many car washes you had had between those two times, in other words, the 16th and the 28th of April, 1993?

A. I don't.

Q. Okay.

A. It was, you know, a floundering business at that time.

Q. All right. Do you recall if there were any other police officers who purchased car washes on the 16th of April, 1993, with hundred dollar bills?

A. I don't believe -- there wasn't any.

Q. Okay. You know that?

A. Yes, I do.

Q. All right. When you were interviewed by the police on April 28, 1993, about this transaction that had occurred twelve days earlier, did you have this receipt in front of you at that time?

A. No.

Q. Okay. Did the police ask you to access your computer to attempt to document that transaction?

A. I do believe they did.

Q. And was that shortly after the interview?

A. I believe it was, yes.

Q. And you did that?

A. Correct. Yes, I did.

Q. And you provided that police -- the police with that document in order to document the transaction that you had previously given oral -- an oral statement and a written statement about?

A. Correct.

Q. Does the number four car wash include a vacuuming?

A. Yes.

Q. So the defendant's car was vacuumed that morning?

A. Correct.

Q. Ma'am, I'm showing you what's been marked as State's Exhibit 32. Can you identify this item?

A. I think that's what they showed me before.

Q. Okay. Did the police show you a photographic array at the time of your interview?

A. I'm sorry?

Q. Did they show you that item at the time you were interviewed by the police?

A. I think this was brought back at another time.

Q. Okay. At a later time the police came?

A. I think so, uh-huh [affirmative].

Q. And they showed you that item? And were you able to pick out a photograph as a picture of the officer who received the car wash that day?

A. Uh-huh [affirmative]. Yes.

Q. Okay. Which one did you pick?

A. I picked three.

Q. Do you recall how many different times the police interviewed you about that transaction on the 16th?

A. I don't know. A couple of times, I guess.

MR. SMEAL: Nothing further, Your Honor.

THE COURT: Recross?

RECROSS EXAMINATION

BY MR. MOORE:

Q. Ms. Heath, the number one car wash, the cheapest one that you talked about, it includes vacuuming the interior, too, doesn't it?

A. Correct.

Q. It would do the same thing to a car with cloth seats as the expensive one does.

A. Correct.

Q. Okay. Now, when I questioned you and I asked you did the police come out more than once, you were very equivocal and you said you didn't know. And then when Mr. Smeal asked you, and you volunteered, 'Oh, yes. They came out two or three times.' Now, why is that?

A. Well, I think a couple of -- well, okay, they came out and interviewed me. Then, if he was in there, for instance, there was one officer, I don't remember what his name was, he would come in and we would just talk and I guess that possibly he took something from what I said out of that.

Q. My question is, I asked you a few minutes ago did they come more than once. You said you didn't know. You were very equivocal. Mr. Smeal gets up and suggests they did, and you said, 'Oh, yes. They came two or three times.'

A. Well, now that I --

Q. Is there some reason you're doing that?

A. Now that I see this, they did not present that with me the first time that they came. That's what made me recall that they must have come more than once because I did not see that the first time -- the pictures the first time they came to the car wash.

Q. Okay. And when you picked that picture out of the -- there, you'd already seen the photograph in the paper, hadn't you?

A. I believe I had, yes.

Q. Okay. And so --

A. That morning.

Q. That morning --

A. Right.

Q. -- when you picked it out?

A. Uh-huh [affirmative].

Q. How long was your husband a police officer?

A. Fifteen years.

Q. And where was he a police officer at?

A. Detroit.

Q. Okay. Now, when they came out the next time, when they brought the photographic lineup, and you told -- did you tell them then it was a hundred dollar bill?

A. I told them that the first time they came out.

Q. Did you --

A. When they, I guess, took this report was the first time that they came out.

Q. Okay.

A. The second time, as I said, that's what made me believe that now -- or know that they came out twice because they did not have any pictures the first time that they were there.

Q. Okay. Which time did they ask you to get the receipt for them?

A. I believe the first time.

Q. Okay. So they had the receipt showing a hundred dollars?

A. Correct.

Q. And they wrote a statement saying it was twenty dollars and you signed it?

A. That's correct. But he gave me a hundred dollar bill.

Q. Are you sure they didn't show you the photographs the day that this statement was taken?

A. No, they did not.

Q. Okay. I'm going to direct your attention again to Defendant's Exhibit Number 53, and right below where you've got your initials and you made a change in it --

A. Uh-huh [affirmative].

Q. -- it reads, 'He did not have a mustache like he had in the photographs that were shown to me.' What photographs are you referring to?

A. Then I guess they must have showed them to me before.

Q. Or the day that you signed this they showed them to you?

A. It could have been, but I sure would have said it wasn't. It could have been.

Q. Okay. You're not very sure about anything about this statement or the photographs, are you?

A. On some of the parts, no.

Q. What parts are you sure about?

A. That the man came in and he got a number four car wash and he rendered a hundred dollar bill to me and I gave him his change.

Q. And none of that's in your statement, is it?

A. [Witness shakes head negatively.]

Q. Thank you, ma'am.

MR. SMEAL: Just a couple of questions, Your Honor.

FURTHER REDIRECT EXAMINATION

BY MR. SMEAL:

Q. Ma'am, in this statement, you did state that the officer received a number four wash and described what that wash consisted of; is that correct?

A. Correct.

Q. And you also stated that the sum -- the total was $19.95 for the car wash and you gave $2 off; is that correct?

A. Correct.

Q. And you gave a description of his person at six-four to 6 feet tall, moussed or greased hair, with a black cord or band on his wrist, on his left wrist; is that correct?

A. Correct.

Q. And you described the black shoes he had on that day?

A. Uh-huh [affirmative]. Correct.

Q. And you also said he was driving a newer model police car, which is smaller than the older models; is that correct?

A. Correct.

MR. SMEAL: Nothing further.

THE COURT: Mr. Moore?

MR. MOORE: Your Honor, I don't have any further questions of her, but I would tender Defendant's Exhibit Number 53, which is a statement she gave the police, and I would ask it be published and allow the jury to see it.

THE COURT: Mr. Smeal?

MR. SMEAL: I have no objection to that, Your Honor.

THE COURT: All right. It's admitted.

MR. SMEAL: Your Honor, the state would also move to admit State's 79 at this time.

THE COURT: Any objection as to the receipt?

MR. MOORE: Your Honor, I would object. She has not connected it up in any way to Mr. Chapel. I mean, there's been no saying that this receipt was connected to him. There's nothing on it that identifies who it was given to. It's merely a receipt that she went back and generated with the computer and she doesn't even know when or why, and we don't believe it's admissible.

THE COURT: Mr. Smeal?

MR. SMEAL: Your Honor, she laid all of the foundation elements for this to come in as a business record. She testified today that the transaction occurred on the morning of 4/16/93. It was a transaction paid with a hundred dollar bill. That is reflected in this document. This document is consistent with her testimony today, and the foundation has been laid as a business record. The original --

THE COURT: I don't recall -- I guess, my --

MR. SMEAL: The original receipt went to the customer. The computer retained this information. There's many cases that hold that computer printouts that are business records are admissible as business records.

MR. MOORE: Your Honor, my objection is not that he hasn't laid a foundation for business records. My objection is there's no connection with Mr. Chapel.

THE COURT: Well, that's -- I'm trying to recall the testimony itself and that was one of my concerns insofar -- in that respect. It's refused. I'll give you the opportunity for further examination if you wish.

MR. MOORE: Your Honor, at this time, I would ask to publish this to the jury.

THE COURT: Go ahead, please.

[The defendant's exhibit was passed to the jury.]

THE COURT: The objection is not as to the foundation being laid. I don't think there's any question about that. The question is, what's the connection between that receipt and this defendant?

FURTHER REDIRECT EXAMINATION -- Resumed

BY MR. SMEAL:

Q. Ma'am, I'm showing you again State's 79. Was that the receipt that was generated from the transaction involving Officer Chapel on the morning of April 16, 1993?

A. I'm almost positive that it was.

Q. All right. Were there any other car washes received with hundred dollar currency transactions that morning?

A. No.

MR. SMEAL: Your Honor, I don't know what else the state could --

MR. MOORE: Your Honor, could I ask her some questions because she'd answered differently when I asked her before?

THE COURT: Go ahead.

FURTHER RECROSS EXAMINATION

BY MR. MOORE:

Q. Ms. Heath, I asked you before about the other transactions on that day, and you said you didn't have any idea.

A. But I did also say that -- then we were looking for this. When we were in the computer, all of the transactions would show -- have shown on the computer.

Q. But you don't have any memory of that, do you?

A. What, seeing all the other transactions?

Q. Do you have any memory of what the other transactions were?

A. Absolutely not.

Q. Okay.

A. No.

Q. And there's nothing on this to indicate that it's connected with Mr. Chapel, nothing on that receipt?

A. Correct.

MR. MOORE: My objection stands, Your Honor.

THE COURT: You're offering State's 79?

MR. SMEAL: Yes, Your Honor.

THE COURT: It's admitted over objection.

MR. SMEAL: Your Honor, if the statement has been published, the state would also request that this document be published.

THE COURT: You may.

[The state's exhibit was passed to the jury.]

THE COURT: Anything else of this witness? Any other question?

MR. SMEAL: No, Your Honor.

THE COURT: Any other question, Mr. Moore?

MR. MOORE: No, Your Honor.

THE COURT: Do you wish her to remain on call or do you wish her released?

MR. SMEAL: Your Honor, we would ask that she be released to return to Ohio.

THE COURT: Any objection, Mr. Moore?

MR. MOORE: Your Honor, we'd ask that she remain on call. Now, I mean, she's testified to -- very unequivocally about this, and it may be that she's necessary for something again. I will try not to call her back, I don't want to inconvenience the lady, but there's a possibility she would be needed later in the trial.

THE COURT: Is she under subpoena by you?

MR. MOORE: Your Honor, we were not able to get her served. She was not in the state, but we would ask that she remain under subpoena. We can serve her today if --

THE COURT: Would you approach the bench, please?

[Counsel approached the bench and the following conference ensued outside hearing of the jury.]

THE COURT: If there is a legitimate interest in her remaining here, you know, I think that's one thing. But the other thing, she's not under subpoena. You got an opportunity to examine her, and I'm not inclined to have her stay over here two weeks.

MR. MOORE: I don't mean stay in the state, Your Honor, just so that she would be available if we needed her.

MS. ROGAN: We weren't provided with a current address for this witness, and we did attempt to serve her at the address we were provided by the district attorney on the witness list, and we learned that she'd moved out of state.

THE COURT: Well, I don't know that it really matters, I guess. Each side --

MR. SMEAL: He just fired four or five shots at her today. I can't imagine there's going to be much more extracted from this witness. The state would request that she be allowed to return to Ohio and not stay here for an indeterminant amount of time.

THE COURT: Well, he's not asking that she stay here. Just that she be available to recall. Well, you know where she is.

MS. ROGAN: We don't, actually --

MR. MOORE: Your Honor, we don't.

MS. ROGAN: -- because the state has not provided us with her current whereabouts.

MR. DAVIS: Oh, come on. Ask her her address. Ask her.

MS. ROGAN: Well, you have an obligation to tell us the current address of the witnesses that you're going to call.

MR. SMEAL: I'll provide a current address.

THE COURT: Yeah, I'll --

MR. MOORE: Your Honor, I'm not saying I intend to call her back, but given the way this case is going, if the police officers come here and testify to something totally different, we may want to bring her back.

THE COURT: Well, I'm going to release her at this point. If she's an essential witness, if she's material later on, and you need some help getting her back, then I'll give you some assistance in getting her back. Okay?

MS. ROGAN: Uh-huh.

MR. MOORE: Okay.

THE COURT: All right.

[Bench conference concluded.]

THE COURT: Ms. Heath, at this point, you're released from any further attendance in the trial of this case. However, if there is a necessity for your coming back up, then you'll be notified, but you're free to go home at this point. Okay?

THE WITNESS: Okay.

THE COURT: All right. Thank you. You can come down.

THE WITNESS: Uh-huh [affirmative].

[The witness stepped down from the stand.]

THE COURT: Would you approach the bench?

[Counsel approached the bench and the following conference ensued outside hearing of the jury.]

THE COURT: You've got another witness that's --

MR. SMEAL: I've got five more waiting.

THE COURT: Oh, okay. Good.

MS. ROGAN: We thought you'd be pleased.

THE COURT: Okay. Well, everybody ate late. The jurors ate late. I think I'm inclined to go till 5:30, sometime -- some point in there.

MR. SMEAL: The state will keep going.

THE COURT: Okay.

MR. SMEAL: We've got a couple of witnesses that we sure would like to get today because --

THE COURT: Okay. All right.

MR. SMEAL: -- they've taken time off and they're here.

THE COURT: Okay. We'll push on for a while, then.

MS. ROGAN: Okay.

MR. SMEAL: You okay?

MS. ROGAN: Yeah, I'm okay.

[Bench conference concluded.]

THE COURT: Okay. Call your next witness, please.

MR. SMEAL: State calls Gregory Smith.

[The witness was called to the courtroom.]

MR. SMEAL: Please have a seat, Mr. Smith.

[The witness stepped to the stand.]

MR. SMEAL: Please raise your right hand. Do you solemnly swear the testimony you're about to give in the matter now pending before the Court will be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS: I do.

Whereupon,

GREGORY MARTIN SMITH

having been called as a witness and duly sworn, was examined and testified, as follows:

DIRECT EXAMINATION

BY MR. SMEAL:

Q. Please state your full name.

A. Gregory Martin Smith.

Q. What is your occupation, Mr. Smith?

A. My title is director of cash services, and my function is managing the cash operation of the Federal Reserve Bank of Atlanta.

Q. Okay. I'm sorry. I'm not sure all of the jurors could hear the place of your employment.

A. The Federal Reserve Bank of Atlanta.

Q. And briefly, what does the Federal Reserve Bank of Atlanta do?

A. We provide financial services to banks. And in my particular area, we receive deposits from financial institutions, and we also fill orders for currency as ordered by depository institutions.

Q. Are there various banks in the United States that are essentially members of the Federal Reserve system which receive currency through the Federal Reserve?

A. Right. We basically supply all institutions if they so wish. We supply members and non-members of the Federal Reserve.

Q. Sir, I'm handing you what's been previously been marked as State's Exhibit 81, and I would ask you if you can identify that document.

A. This document is basically a printout from a Board of Governors database. The Board of Governors is a Federal Reserve systems governing arm in Washington, D.C. and the Board is responsible for tracking new currency shipments as they go to Federal Reserve banks.

Q. Is that a database that the Federal Reserve Bank of Atlanta has access to?

A. That is correct. My staff has access to this database for information relative to shipments from the Bureau of Engraving and Printing.

Q. All right. And does that document -- could you explain specifically what that document contains?

A. Sure. This document basically contains information relative to a shipment of one hundred dollar notes from the Bureau of Engraving and Printing. I believe there were 960,000 notes in this for $96,000,000. It also contains the serial number range of the first note in that shipment as well as the last note in that shipment.

Q. Is that a record that is kept in the regular course of business at the Federal Reserve System?

A. That is correct.

Q. And do the entries on that document, do they reflect the transactions that occurred at or about the time reflected in the document?

A. That's right.

Q. In other words, that information is created in the computer at the time of the transaction?

A. That's right.

MR. SMEAL: Your Honor, at this time, the State would move to admit State's 81.

THE COURT: Any objection?

MR. MOORE: Which one is 81, Mr. Smeal?

[Pause]

MR. MOORE: Your Honor, I don't have any objection to Number 81.

THE COURT: State's 81 is admitted without objection.

BY MR. SMEAL:

Q. Sir, the $96,000,000 figure that you've alluded to you said reflects a range from notes that were distributed within the Federal Reserve System; is that correct?

A. That's right.

Q. And where were those notes distributed from and to?

A. The Bureau of Engraving and Printing has a storage facility in Dallas, Texas. These notes were shipped same day air to us and the serial note range -- basically, this indicates the serial note range that were shipped to us same day via air. Would you want the serial numbers?

Q. Yes. Could you recite the numbers, please?

A. Okay. The serial numbers of the one hundred dollar notes range from K17696001A to K18656000A.

Q. Okay. What was the date of that shipment?

A. The shipment date itself was November 12, 1991.

Q. And what would have been the denominational amounts of that currency? Can you tell from that document?

A. This is -- all of the notes in the shipment were one hundred dollar bills.

Q. All right. So this $96,000,000 in these hundred note serial numbers were received by the Federal Reserve Bank of Atlanta back in 1991; is that correct?

A. That's right.

Q. And that's what this document shows?

A. [Nodding affirmatively]

THE COURT: Would you repeat the range of the serial numbers? I did not understand the first part.

THE WITNESS: Okay. I'm sorry. The serial note range was, the first note in the batch, K17696001A up to K18656000A.

THE COURT: Okay. Thank you. Go ahead, Mr. Smeal.

BY MR. SMEAL:

Q. Sir, I'm also showing you what has previously been marked for identification purposes as State's Exhibit 82, and I would ask you if you can identify this document.

A. This document is what we call a currency requisition report. And as banks order currency from us, at the time that this occurred, we -- out of our own on-line system, we generated what we call a currency requisition report which included each order to be shipped to banks, basically, the currency that banks were requesting. And it -- the report has all denominations on it, ones, twos, fives, tens, twenties, fifties, and one hundreds. And banks may order -- they may order $2,000 in twos, multiple amounts of currency for each denomination.

We take this printout and I -- my staff will fill these orders based on what's printed here. And as they order, complete the order, bag it up, they will initial off beside the bank's name and routing transit number, which is a unique numerical identifier for each bank in the country, and they will initial -- two people, it requires to do this.

Q. Does this computer printout reflect a series of transactions with member banks?

A. That's correct. The shipment date -- this would have been orders that we've prepared on March 10, 1993, which means we paid out to armored carriers these orders on March 10, 1993. And the armored carrier, as they picked up at the Federal Reserve facility, would have delivered those -- these orders to the banks either on March 10 or on March 11, depending on their geographic location relative to the Atlanta Fed.

Q. I want to direct your attention -- well, let me withdraw that question. Is this a document that is kept in the regular course of business of the Federal Reserve Bank of Atlanta?

A. That is correct. This is something that we retain for a period of time as a -- an official record of what we actually pay out on a given day to which banks.

Q. Okay. And are the -- is the information contained in this document -- does that reflect the transactions that occurred at this time?

A. Yes.

Q. In other words, is the information current?

A. The information is current and correct.

Q. All right. I want to direct your attention, sir, to a line which is the fourth from the bottom of this document, and it is in the eighth column of this. There appears to be some handwriting. Can you explain what that handwriting is?

A. The fourth line from the bottom consists of the order that a particular bank placed for currency. And our procedure at the Federal Reserve at the time this occurred was to handwrite the first serial note of any new currency that we paid out. And let me go back to part of our process. We pay out both new currency and fit processed currency, in essence, recirculated money. Money that has come into us, been deposited by a bank, we run it through a processor to clean it up, so to speak, and we also have that in stock. But to differentiate and because it's part of our procedures required by the U.S. Treasury, we indicate the first serial note number of any new notes that we pull out under the denomination order amount.

Q. All right. This is -- this document was generated with a type of database; is that correct?

A. That's right.

Q. A computer database?

A. That's right.

Q. Okay. At the time of that transaction, did you have a field in that database to reflect new currency?

A. No. It is an older database, and we did not have a field in which to actually key enter the first serial note number into our database. As a result, it had to be handwritten.

Q. All right. And do you currently have a system that does have a field to enter new currency which is shipped out from the Federal Reserve?

A. Yes. Our new system does.

Q. All right. I want to direct your attention to another area on the first section of this document. There is some more handwriting and, again, I believe it's the eighth column of a row that appears to involve the Community Bank and Trust; is that correct?

A. Uh-huh [affirmative].

Q. And there's also some handwriting with respect to that column; is that correct?

A. That's right.

Q. Is that handwriting in that column, was that put there for the same purpose of reflecting a new currency alert?

A. That's right.

Q. Was -- do those handwritten entries, at the time of this transaction, were they entered in the regular course of business?

A. Yes.

Q. Okay. Were those entries made for the purpose of this subpoena or this hearing?

A. No, they were not.

Q. So those handwritten entries, they pre-existed on that document at the time the Federal Reserve received the subpoena in this case?

A. That's correct.

Q. Sir, the first row that I referred to at the handwriting appears to involve People's Bank and Trust Company; is that correct?

A. That is correct.

Q. And there is an institution ID associated with that bank?

A. That's right.

Q. Okay. And you received a subpoena in this case; is that correct?

A. That is right.

Q. Do you know which People's Bank and Trust that number belongs to?

A. Buford.

Q. Okay.

MR. SMEAL: Your Honor, at this time, the state would move to admit State's Exhibit 82.

THE COURT: Any objection?

MR. MOORE: Let me look at it a minute, Your Honor. It was in the plastic a minute ago.

THE COURT: Okay. Go ahead.

[Pause]

MR. MOORE: Your Honor, the document appears to be in order. I don't have any objection to the document.

THE COURT: All right. And that was State's 82; is that correct?

MR. SMEAL: Yes, Your Honor.

THE COURT: It's admitted without objection.

BY MR. SMEAL:

Q. Sir, directing your attention to that line involving the People's Bank and Trust Company of Buford, does this document reflect a shipment of currency to that bank on March 10, 1993?

A. It does.

Q. And were there hundred dollar bills included in that shipment?

A. That's right. There were two thousand notes, $200,000 value.

Q. Okay. Two thousand actual bills involving $200,000; is that correct?

A. That's right.

Q. And what was the range of serial numbers that was of new currency that was included in that shipment?

A. As indicated, we record the first serial number -- the serial number of the first note in whatever we pay out. And the first serial number was K18010001A, and because we record the first serial number and because there were two thousand notes or bills paid out, then the serial number range went to K18012000A.

Q. Okay. The currency is sequential?

A. That's correct.

MR. SMEAL: I have no further questions at this time, Your Honor.

THE COURT: Mr. Moore?

CROSS EXAMINATION

BY MR. MOORE:

Q. I assume what you're saying that that was two thousand one hundred dollar bills is what you're saying?

A. That's right.

Q. Okay. Now, you recorded the first serial number; is that correct?

A. Yes.

Q. Now, whoever recorded that, you didn't record that yourself, did you?

A. I did not personally record that, no.

Q. Okay. You didn't have a policy at that time that whoever did it also recorded the last serial number?

A. We did not.

Q. Okay. Now, how were the orders filled back then? Somebody had to actually get that money and put it in something to ship it to wherever it was going?

A. Right.

Q. Did they put it in a box or something like a UPS box or something?

A. Right. Typically, a plastic bag.

Q. Okay.

A. That is heat-sealed.

Q. Okay. And that would be -- is that still done by hand these days or does a machine do it?

A. Still done by hand.

Q. Okay. So somebody had to go and pull that order, like when I used to work at a warehouse?

A. Uh-huh [affirmative].

Q. And put it in the bag and then seal it up?

A. Right.

Q. And if they didn't pull those numbers in sequence, then they wouldn't necessarily be in sequence, would they?

A. If that were to occur, that is correct, they would not be in sequence.

Q. Okay. And since it's a human doing it, it would be possible they could do that?

A. It would be possible.

Q. I noticed some other notations on here that may not have anything to do with the case, but they're handwritten and I wanted to ask you what they are. If you could tell me what these notations are?

A. That would just indicate the number of notes in that particular payout.

Q. Okay. And since they're not new notes, they don't have any serial numbers?

A. That's right.

Q. Okay.

MR. MOORE: That's all the questions I have.

MR. SMEAL: Just one question, Your Honor.

THE COURT: Go ahead.

REDIRECT EXAMINATION

BY MR. SMEAL:

Q. Sir, did you ever receive any information indicating that this shipment was not filled?

A. No.

MR. SMEAL: Nothing further.

MR. MOORE: I just have one more question, Your Honor.

THE COURT: Yes, sir.

RECROSS EXAMINATION

BY MR. MOORE:

Q. Do you have any way of telling from those documents, if there's more than one branch, which branch the shipment was sent to?

A. Yes. It indicates that we had in the system a branch code which is at the end of the unique bank identifier. In this particular case, it went to branch -- the main branch, presumably, assuming it's coded that way in our system, 0000. Usually, all zeroes indicates the main branch.

Q. Okay.

THE COURT: Anything else of this witness?

MR. MOORE: That's all. Thank you.

THE COURT: Anything else, Mr. Smeal?

MR. SMEAL: No, Your Honor. We'd ask that this witness be released to return to his duties with the Federal Reserve.

THE COURT: All right. Is he on call?

MR. SMEAL: He can be on call. I don't anticipate having to call him.

THE COURT: Okay. You can come down. Call your next witness.

THE WITNESS: Leave this here?

THE COURT: Yes. Leave that where it is, please.

[The witness stepped down from the stand.]

MR. SMEAL: The state calls Laurie Pace.

[The witness was called to the courtroom.]

THE COURT: Ma'am, if you'll come and have a seat up here on the witness stand, please.

[The witness stepped to the stand.]

THE COURT: Go ahead and be seated and Mr. Smeal will administer the oath.

MR. SMEAL: Please raise your right hand, ma'am. Do you solemnly swear the testimony you're about to give in the matter now pending before the Court will be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS: I do.

Whereupon,

LAURIE B. PACE

having been called as a witness and duly sworn, was examined and testified, as follows:

DIRECT EXAMINATION

BY MR. SMEAL:

Q. Please state your full name and if you would please spell your last name for the court reporter.

A. Laurie B. Pace, P-a-c-e.

Q. And what is your occupation, ma'am?

A. Part owner in a sign and screen printing shop.

Q. What's the name of that company?

A. Gwinnett Screen Graphics.

Q. Where's it located?

A. Currently, at 100 Paper Mill Road here in Lawrenceville.

Q. All right. How long have you been running that business?

A. More or less since the summer of '89.

Q. What type of business is it?

A. We do sign work and screen printing.

Q. Okay. And do you live in this area?

A. Lawrenceville, yes.

Q. All right. Were you working at that company back in April 1993?

A. Oh, yes.

Q. Okay. And where was it -- was it located at the same location at that time?

A. No. One of our locations was at 595 Old Norcross Road here in Lawrenceville.

Q. Okay. Does that location still exist or have you moved since that time?

A. That location exists, but we have moved.

Q. I see. What are your duties with Gwinnett Screen Graphics, ma'am?

A. Anything that has to do with clerical.

Q. How big a company is it? How many employees do you have?

A. Currently, we have about ten.

Q. Ma'am, I'm handing you what's been -- previously been marked for identification purposes as State's Exhibit 80. Can you identify that document?

A. It is one of the order forms we use in our company.

Q. Okay. And is that a completed order form?

A. Yes, it is.

Q. And is that order form dated?

A. Yes, it is. April 19, '93.

Q. I want to direct your attention to that date. Do you recall the transaction that is reflected in this document?

A. Yes, I do.

Q. Okay. Do you recall approximately what time of day that transaction occurred?

A. I can't say for sure. I would guess mid-day.

Q. Was it during business hours?

A. Oh, yes.

Q. All right. And what does that -- what did that transaction involve?

A. It involves some -- a customer coming in and purchasing some T-shirts and some jackets and some tank tops.

Q. Were you the one waiting on that customer?

A. Yes, I was.

Q. And would you describe the customer who came in that day?

A. I guess about 6 foot 4, dark hair, fairly short hair, well-built, and I'm pretty sure he was clean-shaven.

Q. And what did that customer order?

A. You mean item per item?

Q. Well, generally describe what he was ordering.

A. Oh. T-shirts, the muscle-type style, tank tops, like bodybuilders wear, and some silver warm-up jackets.

Q. The person that you waited on that day in that transaction, do you see that person in the courtroom today?

A. Yes, I do.

Q. Would you point to him, please?

A. The gentleman there with the green jacket on.

MR. SMEAL: Okay. Your Honor, I'd ask that the record reflect that this witness has identified the defendant.

THE COURT: It will so reflect.

BY MR. SMEAL:

Q. When was that order -- when did the defendant actually place that order, ma'am?

A. On that date, April 19.

Q. Okay. Did you know him from any previous occasion?

A. No.

Q. That was the first time you had seen him?

A. The first time I'd ever seen him.

Q. To your knowledge, was that the first time that he had done business with your company?

A. Yes.

Q. Was there anyone else with him that day when he came into your store?

A. Not that I recall.

Q. Okay. Did he actually receive the merchandise that day?

A. No. We do just custom work, everything as you order it, and then you receive it within a certain number of days.

Q. And is this the actual, original document, the receipt, reflecting that transaction that day?

A. No. This is a photocopy of our actual two-part form.

Q. Okay.

A. And I just made a copy for him.

Q. I see. This appears to have some handwriting on there reflecting --

A. That --

Q. -- the method of payment.

A. That serves as his receipt because we do not keep just regular receipt books around.

Q. All right. What was the total of that purchase that day?

A. $597.99.

Q. Okay. And was it paid for that day?

A. Yes, it was.

Q. How did he pay for it?

A. He paid for it with six one hundred dollar bills.

Q. Okay. And so he would have received a -- like a small amount of change; is that correct?

A. If I gave him change, yes.

Q. Do you recall giving him change?

A. No, I don't recall giving him change, but I probably did. I just don't recall it. We very seldom have any cash on hand.

Q. Okay. Was that order ever actually filled?

A. Yes, it was.

Q. In other words, did he -- did someone receive the merchandise eventually?

A. Yes.

Q. Was that the defendant?

A. No.

Q. Who was the merchandise provided to, if you know?

A. A female came by and picked it up.

Q. Do you recall how much -- how much later than that date that order was filled?

A. No. You mean as far as our end or when this female picked it up?

Q. I'm talking about when the female picked it up.

A. No. I don't remember when she picked it up. It was later, though, than the ten days that we had, you know, promised it due.

Q. All right. Is that the normal turnaround time for filling an order?

A. On a -- on a first-time order, yes, we like a week to ten days.

MR. SMEAL: I have no further questions at this time.

THE COURT: Ms. Rogan?

CROSS EXAMINATION

BY MS. ROGAN:

Q. Good afternoon, Ms. Pace. My name's Elizabeth Rogan, and I'm one of Mr. Chapel's attorneys.

A. Uh-huh [affirmative].

Q. I just have a couple of questions for you. You indicated on direct testimony that you did not know Mr. Chapel prior to the time he came into the --

A. No, I'd never met him.

Q. -- store. Okay. Do you recall ever having spoken with him on the telephone?

A. I probably did.

Q. Do you remember him calling to inquire about prices and --

A. We're listed in the phone book. We were in an industrial park. We're not a retail seller, so just about everyone who comes in calls first, so he probably called. But if you're asking me if I remember the exact name of Mike Chapel calling, no, I do not.

Q. Okay. And you're in the business of making custom T-shirts and other --

A. Screen printing, yeah, textiles.

Q. For businesses primarily?

A. Anyone that wants it.

Q. Okay.

A. Anyone. Schools.

Q. And when Mr. Chapel came into your establishment, he was interested in getting T-shirts, jackets, tank tops --

A. Uh-huh [affirmative].

Q. -- as you said, for his business?

A. Right.

Q. The Iron Works Gym --

A. Uh-huh [affirmative].

Q. -- which appears on the document in front of you. And there was -- was he going to have a customized logo or --

A. Yes.

Q. -- design?

A. If I remember, he had some kind of business card and it might have had an anvil. I don't quite remember what the design was, but I think it might have been a anvil of some type on it.

Q. Okay. With something that indicated a gym?

A. Iron works, yeah.

Q. Iron works.

A. Yes.

Q. Okay. Which is muscle -- bodybuilding.

A. Yes.

Q. In fact, when you spoke to the police, you described Mr. Chapel as a bodybuilder?

A. Yeah. He looked very much like a bodybuilder that day.

Q. He's a very large man.

A. Yes.

Q. At the time very muscular and well built?

A. Uh-huh [affirmative].

Q. Was he in his uniform the day he came in?

A. No.

Q. You spoke to the police on April 26, 1993; do you remember that?

A. I remember speaking to them shortly after this [indicating].

Q. Okay.

A. But as far as pinpointing the date, I don't remember the date.

Q. Do you remember being aware at that time that Mr. Chapel had been arrested?

A. No. No.

Q. Okay. You weren't aware. Did the police tell you that when they came to speak with you?

A. I don't recall them telling me anything about it, about him being arrested for any particular thing at that time.

Q. Okay. How did the police come to speak with you; do you know?

A. Yeah. I remember a detective, I guess, of some kind or the person that came to talk to me, I can't remember if he was uniformed or not, brought a copy of this in [indicating] and started out the conversation as, you know, 'is this yours?' And I said yes. And that's the first thing I ever knew about there was any trouble, say, with the order.

Q. I see. All right. And you hadn't placed the order at that point yet or finished -- you hadn't finished it yet?

A. No. The order had not been printed at that time.

Q. Because there were ten days --

A. Yeah. We were --

Q. -- after the time it was placed?

A. We were probably working on the art work.

Q. Okay. So as far as you knew, the police had obtained somehow that receipt?

A. Yes.

Q. And then came to you to say --

A. Questioned me about it.

Q. -- you know, what happened here, what's going on with this receipt?

A. Uh-huh [affirmative].

Q. Now, the order itself was for $597 and some change worth of T-shirts, tank tops, jackets, that type of thing?

A. Uh-huh [affirmative].

Q. And I believe your policy was to require at least a 50 percent deposit at the time that an order is made?

A. Right. We ask for that on -- especially on our first-time buyers.

Q. Okay. And Mr. Chapel offered to pay in full --

A. Right.

Q. -- while he was there. And you've said he paid with six one hundred dollar bills?

A. Uh-huh [affirmative].

Q. Do you remember telling the police that the bills did not appear to be brand new?

A. Yes, I do.

Q. The equipment or clothing, I guess -- was it all clothing or was there anything else he was ordering?

A. They was all in textiles.

Q. Okay. Is that the type of clothing that one would have for, say, advertising the business? Is that how you would characterize the clothing?

A. Yeah.

Q. Okay. So that --

A. Probably, you know, say, for sales within his own gym.

Q. So it's something that someone would order to sell to people who frequented the gym?

A. And to promote the gym, yes.

Q. So that they would walk around Buford and have his gym advertised?

A. Uh-huh [affirmative].

Q. Okay.

MS. ROGAN: That's all I have. Thank you, Ms. Pace.

THE COURT: Redirect?

MR. SMEAL: I have no further questions at this time.

THE COURT: All right.

MR. SMEAL: The state would move to admit State's 80, Your Honor.

THE COURT: Any objection?

MS. ROGAN: No. As long as she's available, Your Honor, we have no objection to --

THE COURT: No, I'm talking about State's 80.

MS. ROGAN: Oh, I'm sorry. I was distracted for a moment. No, we have no objection to that.

THE COURT: State's 80 is admitted without objection. You can come down, Ms. Pace.

THE WITNESS: Thank you.

[The witness stepped down from the stand.]

THE COURT: Call your next witness.

MR. SMEAL: Officer Rudowski.

[The witness was called to the courtroom.]

THE COURT: Officer, if you'll come on up and take the witness stand up here, please.

[The witness stepped to the stand.]

MR. SMEAL: Please raise your right hand. Do you solemnly swear the testimony you're about to give in the matter now pending before the Court will be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS: Yes, sir.

Whereupon,

MARK RUDOWSKI

having been called as a witness and duly sworn, was examined and testified, as follows:

DIRECT EXAMINATION

BY MR. SMEAL:

Q. Please state your full name.

A. Mark Rudowski.

Q. Would you spell your last name for the court reporter, please.

A. R-u-d-o-w-s-k-i.

Q. How are you employed, Officer?

A. Gwinnett County police department.

Q. How long have you been a police officer with Gwinnett County?

A. A little over seven years.

Q. I assume you were so employed back in April 1993?

A. Yes, I was.

Q. I want to direct your attention to April 18, 1993, in the late evening hours. I would ask you if you recall what you were doing at that time?

A. I was at Post Court Apartments. Excuse me, I was on uniform patrol working the morning watch that night.

Q. Officer, I'm handing you what's been previously marked for identification purposes as State's Exhibit, first of all, 83. Can you identify that document, please?

A. It's a copy of a citation I wrote to Ms. Kiersten Frazier-Forg for a violation of a noise ordinance.

Q. All right. And I'm handing what's been marked for identification purposes as State's Exhibit 85. Can you identify that document, please?

A. It's a copy of a citation I wrote to Ms. Forg for disorderly conduct, the same date and time.

Q. All right.

THE COURT: That was written to whom? I could not understand the name.

THE WITNESS: Kiersten Frazier-Forg.

THE COURT: Okay. Thank you.

BY MR. SMEAL:

Q. Could you spell that for the court reporter?

A. First name Kiersten, K-i-e-r-s-t-e-n, Frazier, F-r-a-z-i-e-r hyphen F-o-r-g.

Q. All right. Would you briefly explain to the court and the jury the circumstances of your issuing those citations to her at that time?

A. That was a Post Court Apartments. She lived in apartment 1120D, Delta, and it was a party she was having and I issued the citation. It was for excessive noise and disorderly conduct on her part.

Q. Did you respond to that location more than once that evening?

A. Yes. When I wrote the citations, that was my second response there.

Q. Okay. Did you observe what appeared to be going on at that location?

A. Yes.

Q. What was going on?

A. It was a -- it was a party.

Q. How many persons were at the party? Could you tell?

A. First or second time -- that was --

Q. Well, the second time when you issued the citations.

A. I would -- difficult to remember. I saw at least six people from my vantage point at the doorway looking into the apartment. I never did enter into the apartment.

Q. Was this person that you've identified, Kiersten Forg, was she placed in custody that night?

A. Yes, she was.

Q. Was a bond set on these citations, if you're aware?

A. That's normal procedure, but I wouldn't know.

Q. Okay. You were not involved with the bonding procedure?

A. No.

Q. Officer Rudowski, do you know the defendant in this case, Mr. Michael Chapel?

A. Yes, I do.

Q. Do you know him as a former Gwinnett County police officer?

A. Yes.

Q. Did you ever actually work with him?

A. No, I did not.

Q. Do you know his wife, Eren Chapel?

A. Yes.

Q. Did you see her at that party that night?

A. Yes, I did.

Q. Okay. Without getting into the content of any speech, did you talk with her that night?

A. Yes, I did.

Q. Would you briefly describe her demeanor during that conversation that night?

MS. ROGAN: Your Honor, I'm going to object on relevance grounds.

THE COURT: Would you approach the bench?

[Counsel approached the bench and the following conference ensued outside hearing of the jury.]

THE COURT: Where are we going with the testimony?

MR. SMEAL: The next witness or perhaps the second witness is going to testify that he encountered Eren Chapel that early morning and saw in her possession a large sum of money, that this person at one point was holding her purse, and Eren Chapel got very upset and snatched the purse away from this witness, opened it up, and thumbed through what will be described as a quarter to a half inch stack of hundred dollar bills.

THE COURT: And what's his testimony going to be?

MR. SMEAL: This officer did not see the money. I was just going to ask briefly about her temperament that night. I'll withdraw the question. I think later on, the next witness, will describe what he actually saw.

THE COURT: Okay. Okay.

MR. SMEAL: Okay.

[Bench conference concluded.]

THE COURT: Go ahead, please.

BY MR. SMEAL:

Q. Where did you have the conversation with the defendant's wife, Eren Chapel?

A. It was in front -- at the apartment doorway.

Q. Okay. Following the arrest of Ms. Kiersten Forg, did the persons leave the party, to your knowledge?

A. Yes, they did.

Q. Did that pretty much break up the party at that point?

A. Yes, it did, because Ms. Forg was the keyholder to the apartment.

Q. The party was being held at her residence?

A. Yes.

Q. And, to your knowledge, did Ms. Chapel leave at that point?

A. Yes, she did. Shortly -- in fact, she was leaving, pulling away with a couple of other people in a vehicle as I was leaving.

Q. Okay. Did you know any of the other persons in that vehicle?

A. No, I did not.

MR. SMEAL: No further questions, Your Honor.

THE COURT: Mr. Moore?

CROSS EXAMINATION

BY MR. MOORE:

Q. Officer Rudowski -- is that the correct pronunciation?

A. Rudowski.

Q. Rudowski. Okay. How long have you been a Gwinnett County police officer?

A. A little over seven years.

Q. Okay. Now, getting called out to a noisy party or something is not an uncommon thing, is it?

A. No, it's not.

Q. It's a very common thing, isn't it?

A. Yes.

Q. Okay. Now, you lived in the same apartment complex there; is that correct?

A. That's correct.

Q. Did you know the people at the party?

A. No, I did not.

Q. You didn't know any of them?

A. No.

Q. Including Mr. Chapel's wife?

A. No. She introduced herself to me.

Q. Now, which zone do you normally work?

A. At that time?

Q. At that time, yes, sir.

A. The zone that my apartment complex was in.

Q. Do you know what that zone number is?

A. 131.

Q. And how far is that from Buford?

A. About sixteen miles to the town.

Q. And what shift were you working back then?

A. Morning watch. Midnight.

Q. And do you remember where you were when you got the call?

A. No, I don't remember.

Q. Is it required that you write a report when you issue a citation for disorderly conduct and violation of the noise ordinance?

A. If I take someone into custody, yes.

Q. Now, at the time that you made this arrest, had you heard anything about Mike Chapel being involved in an investigation?

A. No.

Q. You'd not heard anything about it?

A. None whatsoever.

Q. Nobody, no detective or anybody had interviewed you regarding Ms. Thompson at that time?

A. No.

Q. Were you ever interviewed regarding Ms. Thompson's death?

A. No.

Q. As to where you were or what you were doing that night before you went to work or anything like that?

A. No.

Q. What kind of car did you drive back then, back in 1993?

A. Oh, I had my -- I was trying to remember when I got my car issued to me. It's a '92 Ford Crown Victoria.

Q. I'm going to show you Defendant's Exhibit Number 2 and ask you if you'd take a look at that and see if there's a -- if there is any car on there like the car you drove.

A. Like the car I drove?

Q. Yes, sir.

A. About half of them are very similar, very like it.

Q. Okay. I'm talking about not this same -- not this Ford, this Crown Victoria, but I'm talking about one that had the type markings and type blue lights and everything your car had.

A. Yes. It would be picture number 11.

Q. Could you come down and show the jury which one you picked out?

A. Sure. [Stepping to the jury box] Number 11.

Q. And that's a 1992 Crown Victoria; is that right?

A. That's what I have, yes, sir. [Returning to the witness stand]

Q. Were you directed by any officer -- supervisor to write a report in this case?

A. No. It's standard procedure. I did it anyway, regardless.

Q. Okay. But did anybody direct you, is my question?

A. No.

Q. Did Sergeant DeWitt specifically direct you to write a report in this case because it involved a police officer's wife?

A. No. I wrote the arrest report.

Q. But my question is, I know you wrote it, but did somebody direct you to write it?

A. No, sir.

Q. Now, you wrote about a page report here on a disorderly conduct case.

A. Yes.

Q. Could you explain why such a lengthy report on a disorderly conduct?

A. I do that when I feel that it may be controversial basically because of the actions of both the perpetrator or myself or words spoken. I also find that generally when I write a longer, more detailed report, I usually have less chance of testifying in court over it.

Q. Did you really expect to ever testify in court on a disorderly conduct case?

A. Not on this one.

Q. I mean, how many times have you testified in court in your career on disorderly conduct cases?

A. Perhaps half a dozen times.

Q. And how many citations would you say you've issued for that in your career?

A. I couldn't say. Considerably -- considerably more.

Q. Would it be hundreds or thousands?

A. Less than a hundred.

Q. Less than a hundred. How long have you been with the police department?

A. A little over seven years.

Q. And you've only issued a hundred disorderly conducts in seven years?

A. Less than a hundred, yes, sir.

Q. Would it be fair to say in these kind of cases, most of the time people just go pay the fine?

A. Yes.

Q. Do you know what the fine normally is for an ordinance violation like this?

A. No, sir, I don't.

Q. Now, on this particular occasion, you carried the person you arrested out to your car to issue the citation; was that correct?

A. Yes. I placed her under arrest and put her in my vehicle.

Q. Now, you could have issued her the citation at the apartment, couldn't you?

A. Had I not taken her into custody, yes, I could have.

Q. You had discretion as to whether to take her into custody or not, didn't you?

A. Yes.

Q. Okay. And you chose to take her into custody here?

A. Yes.

Q. Would you explain why you chose to take her into custody?

A. Just the overall situation, I would have to say, her behavior and actions and demeanor.

Q. Could you tell us more about it? I mean, just not be general and tell us what she was doing?

A. I honestly can't remember. I hadn't reviewed my report since I wrote it.

Q. Would you like to review it? Let me get it marked here.

[Defendant's exhibit was marked for identification by the court reporter.]

BY MR. MOORE:

Q. Can you identify that document?

A. Yes. This is the incident arrest report I wrote.

Q. It's got the number on the back.

THE COURT: What's --

MR. MOORE: Let me identify it by that number.

THE WITNESS: Okay.

MR. MOORE: It's Defendant's Exhibit Number 54.

THE COURT: Thank you.

THE WITNESS: [Reviews report] I'm ready.

BY MR. MOORE:

Q. Can you explain now why you felt it necessary to arrest her?

A. Yes. Because when I had asked her to come out to the patrol car to issue the citation, she said no. And that's when I reached and grabbed her and pulled her out. And my reasoning for wanting to issue the citation at my patrol car away from them was to get away from the crowd because of the intoxicated behavior of the defendant and the loud boisterous activity of just about everybody that was there.

Q. Do you always arrest people in those situations?

A. No, sir.

Q. Especially somebody who's been drinking, do you try to persuade them to come out to the car rather than arrest them and take them down to the jail?

A. That's what I did. This time, I'd asked her to come out to the car.

Q. And she said no, and you said you grabbed her was what I heard you say.

A. Yes. I reached in from the doorway into her apartment and grabbed hold of her.

Q. Did you know Mike Chapel?

A. Only professionally.

Q. Have you ever worked with him?

A. No, I haven't.

Q. Have you ever answered calls up in the Buford area?

A. I have since last January when I was transferred there.

Q. You're in the Buford precinct now?

A. Yes, I am.

Q. Which zone do you patrol in?

A. All of them at various times -- none in particular.

Q. You're not assigned to a particular zone up there now?

A. No.

Q. And you told me, I believe, that you never were interviewed by anybody about Ms. Thompson's death, either before or after --

A. Correct.

Q. -- before or after Mike Chapel's arrest?

A. Correct.

Q. Okay. Do you know where you were or what you were doing on April 15, 16, 1993?

A. No, I don't remember.

Q. Do you know if you were with somebody? Do you live alone or are you married?

A. I'm married. I -- if you're asking for the night, I don't remember because I don't remember what my schedule was or whether I was working that night or not. Since I work morning watch, if I was scheduled to work, then that's where I was at.

Q. And around ten o'clock at night would be before you went to work?

A. Yes.

Q. Okay.

MR. MOORE: Nothing further.

REDIRECT EXAMINATION

BY MR. SMEAL:

Q. Officer Rudowski, do you regard report writing as being a necessary part of the job of police work?

A. Yes.

Q. Do you regard it as important to document your encounters with various people?

A. Yes.

Q. Do you know whether you were ever identified as being in the vicinity of the Gwinnco Muffler Shop on the evening of April 15, 1993?

A. No.

Q. Do you know whether the police department ever found any traces of blood in your police vehicle?

A. No.

Q. Officer Rudowski, did you kill Emogene Thompson?

A. No.

MR. SMEAL: Nothing further.

THE COURT: Recross?

RECROSS EXAMINATION

BY MR. MOORE:

Q. Officer Rudowski, the truth is nobody ever checked your car for blood or anything, did they?

A. That's correct.

Q. And you've got a five-page handwritten report. How long would you estimate it took you to write a report like that?

A. After the arrest, approximately forty-five minutes to an hour.

Q. So it's worth forty-five minutes to an hour to write a report for a disorderly conduct case?

A. This one, yes.

Q. This one. This one was different than other disorderly conduct cases?

A. The ones I've made custodial arrests, no, it's not different.

Q. Okay.

MR. MOORE: That's all I have. Thank you.

THE COURT: Anything else of this witness?

MR. SMEAL: No, Your Honor.

THE COURT: You can come down.

[The witness stepped down.]

THE COURT: Would you approach the bench, please?

[Counsel approached the bench and the following conference ensued outside hearing of the jury.]

THE COURT: You want to do one more?

MR. SMEAL: I'd like to do one more very short one.

MS. ROGAN: I need a break.

THE COURT: Let's take five minutes. Let's knock out one more witness and then we'll call it a day.

MR. SMEAL: This should only be a five-minute witness.

MR. MOORE: Your Honor, it may be more than five minutes. I'm going to tell you right up front.

MS. ROGAN: If we think --

MR. SMEAL: What are you talking about?

MR. MOORE: I don't know what witness you're calling, but I'm just saying I'm not going to agree it's five minutes until you put him up, I mean --

MR. SMEAL: It's Deputy Willis.

MS. ROGAN: The arresting --

MR. SMEAL: No, he took the bond from Mr. Chapel.

MR. MOORE: That may be pretty short.

THE COURT: Okay.

MR. MOORE: But, see, I don't know who he's putting up so I can't agree with five minutes, I mean --

THE COURT: You might ask him if he stipulates it's going to be five minutes.

MS. ROGAN: Ready, set, go.

MR. SMEAL: I understand that.

THE COURT: Do you want to get this one out of the way before we recess?

MR. MOORE: Ms. Rogan wanted to take a break, Your Honor.

MS. ROGAN: Well, I just need a break right now.

THE COURT: Okay. Well, let's take a short -- we'll take five minutes and let's get this one out of the way and then we'll go into motions after that. Okay.

[Bench conference concluded.]

THE COURT: We're going to take five minutes. We have one more short witness we're going to hear from and then we'll release you for the afternoon and you can go on to supper. We'll take five minutes. It should be a quick five minutes.

[The jury was excused from the courtroom for the recess.]

THE COURT: Let's take five minutes, and we'll be no more than five minutes and then we'll proceed with the next witness. We'll take a recess ourselves for a few minutes and then we'll proceed on with our motions left over as far as the video goes and take care of that tonight.

MR. DAVIS: Yes, sir.

[Break taken]

THE COURT: Is the state ready?

MR. SMEAL: Yes, Your Honor.

THE COURT: Is the defendant ready?

MR. MOORE: Yes, Your Honor.

THE COURT: Bring the jury back, please. And you might go ahead and have your witness come on in.

MR. SMEAL: The state calls Craig Willis.

[The witness was called to the courtroom and stepped to the witness stand.]

THE COURT: Go ahead and be seated, please.

[The jury returned to the courtroom and proceedings resumed, as follows.]

THE COURT: Who do you call next, Mr. Smeal?

MR. SMEAL: The state calls Deputy Sheriff Craig Willis.

THE COURT: If you'll administer the oath, please.

MR. SMEAL: Please raise your right hand. Do you solemnly swear the testimony you're about to give in the matter now pending before the Court will be the truth, the whole truth, and nothing but the truth, so help you God?

THE WITNESS: I do.

Whereupon,

CRAIG FOREST WILLIS

having been called as a witness and duly sworn, was examined and testified, as follows:

DIRECT EXAMINATION

BY MR. SMEAL:

Q. Please state your full name.

A. Craig Forest Willis.

Q. And would you spell your last name for the court reporter.

A. W-i-l-l-i-s.

Q. What is your current occupation, Mr. Willis?

A. Currently, I'm a deputy sheriff with Gwinnett County Sheriff's Department.

Q. How long have you been so employed?

A. I've been employed by Gwinnett County sheriff's office for approximately the last four and a half years, the last year and a half as a deputy sheriff.

Q. And were you working for the sheriff's office back in April 1993?

A. Yes, sir.

Q. Deputy Sheriff Willis, I'm showing you what's been previously marked for identification purposes as State's Exhibit 84. Can you identify that document?

A. Yes, sir. That's a cash bond for posted bond at the jail.

Q. Okay. And does that bear your signature?

A. Yes, sir.

Q. The person who was being bonded, is that person named in that document?

A. Yes, sir.

Q. And what is that person's name?

A. Kiersten Luann Frazier-Forg.

Q. Okay. And is there a citation number at the top of that document?

A. Yes, sir.

Q. Okay. And what is the date of that document?

A. The 19th day of April 1993.

Q. I'm showing you what's been marked as State's Exhibit 86. Can you identify that document, please?

A. Yes, sir. That's also a cash bond for posted bond at the jail.

Q. Does that involve the same person?

A. Yes, sir.

Q. Kiersten Frazier-Forg?

A. Yes, sir.

Q. Is that also dated April 19, 1993?

A. Yes, sir.

Q. All right. And the citation is also -- a citation number is listed at the top of that document?

A. Yes, sir.

Q. What was the amount of that cash bond?

A. $120.

Q. And I'm sorry, I don't know if you said what the cash bond of the first, State's Exhibit 84 --

A. It was also $120.

Q. Do you know the defendant in this case, Mr. Michael Chapel?

A. Yes, sir, I do.

Q. Did you see him on April 19, 1993?

A. Yes, sir.

Q. Would you tell the members of the jury the circumstances of that contact?

A. At approximately 1:30 in the morning, I was working in the release office of the Gwinnett County detention center, and Mr. Michael Chapel came up to the release office to post a cash bond and get Kiersten Luann Frazier out of jail.

Q. All right. And how did he post that bond?

A. Cash.

Q. Would that have been the $240 total, $120 on each bond?

A. Yes, sir.

Q. Okay. Do you remember the denominations of the currency that he used on that day?

A. No, sir, I don't remember.

Q. Did he hand you that currency directly?

A. Yes, sir, he did.

Q. And the person that you've named as Mr. Michael Chapel, do you see that person in the courtroom today?

A. Yes, sir, I do.

Q. Would you point to him, please?

A. Sitting between -- the middle, at the table there, the defense side.

MR. SMEAL: Your Honor, I'd ask the record to reflect that this witness has identified the defendant.

THE COURT: It will so reflect.

MR. SMEAL: I have no further questions, Your Honor.

THE COURT: Mr. Moore?

Cross

BY MR. MOORE:

Q. My name's Johnny Moore. I've got a few questions for you.

A. Okay.

Q. There's -- two names that appear on here is Michael Chapel's and another. Can you tell us who the other's is?

A. Well, the other one is Kiersten Forg, signed as principal.

Q. Okay. And the $240 cash bond, that was on both charges; right?

A. That's a total of the two charges combined together.

Q. Is it policy of the jail that a bond is usually set at the amount the fines would be in court?

A. Say it again for me, please?

Q. On an ordinance violation like this, is it policy at the jail that the bond is set at the amount the fines would be?

A. I'm not familiar.

Q. You don't know whether it's --

A. No, no.

Q. There wasn't anything unusual about this -- somebody bonding somebody out and bringing cash to the jail, was there?

A. There's nothing unusual. I do cash bonds every day.

Q. Okay. I mean, people come out there all the time with these little charges like that and put up cash bonds, don't they?

A. Yes, sir.

Q. And one of the reasons they do is because when they go to court, they get their money back if they put up a cash bond?

A. Say it one more time for me now?

Q. When they go to court, they get their money back if they put up a cash bond as opposed to hiring a bondsman?

A. I'm not familiar. I'm pretty sure they do, though. If they show up in court, it can either be put towards the fines or returned to them.

Q. Whereas if they went and got a bondsman, the bondsman would keep the money that they paid to him?

A. The 10 percent, correct.

Q. Okay. MR. MOORE: That's all I have.

THE COURT: Redirect?

REDIRECT EXAMINATION

BY MR. SMEAL:

Q. Did you know that Mr. Chapel was a police officer when you saw him that day?

A. Yes, sir, I did.

Q. Was he in uniform?

A. No, he was not.

MR. SMEAL: Nothing further, Your Honor.

THE WITNESS: Okay.

THE COURT: Recross?

MR. MOORE: Nothing further, Your Honor.

THE COURT: You can come down.

THE WITNESS: Thank you.

THE COURT: Would you approach the bench, please?

THE WITNESS: Judge Bishop, I've also been placed on defense subpoena.

THE COURT: Where do we stand on the defense subpoena, Mr. Moore?

MR. MOORE: Your Honor, I can't imagine we'd need him back, but if he'd just be on call --

THE WITNESS: Okay.

MR. MOORE: You're at work the next week or so anyway, aren't you?

THE WITNESS: Yeah.

MR. MOORE: You're not on vacation or anything?

THE WITNESS: Uh-uh [negative].

THE COURT: You'll just be on call.

THE WITNESS: Okay. I appreciate it.

[The witness stepped down from the stand.]

[Counsel approached the bench and the following conference ensued outside hearing of the jury.]

THE COURT: How do you think we're doing time- wise?

MR. PORTER: Since -- when we may wrap up? Saturday's a realistic possibility. Monday may be more. Monday at the latest, I think.

THE COURT: Okay. Well, Saturday would be nice. It would be nice if we could wind that up and hear any defense motions Saturday and give the other side a nice clean break if I could, so if we can that sure would be nice, but whatever --

MR. PORTER: Yeah.

THE COURT: Okay. At this point, has everybody got their law together to talk about the issues?

MS. ROGAN: As much as there is.

MR. MOORE: We've got the lack of law together, Your Honor.

THE COURT: All right. I'm going to send them on to supper, then, and let's take fifteen minutes. We'll take fifteen minutes.

MR. PORTER: Your Honor, we may be able to dispose of a good portion of it --

MS. ROGAN: Yeah, Mr. Porter's --

THE COURT: Stipulate to part of it?

MR. PORTER: Yeah.

THE COURT: All right. Well, let's see what we can resolve by agreement --

MS. ROGAN: Okay.

THE COURT: -- and then we'll take a break and stay however long it takes to get the rest of it ironed out tonight, then. Okay.

MR. SMEAL: Your Honor, if I could move to admit the last four documents on the record. That's all I want to do.

THE COURT: Okay. That would be fine.

[Bench conference concluded.]

THE COURT: Anything else, Mr. Smeal?

MR. SMEAL: Your Honor, at this time, the state would move to admit State's Exhibits 93, 94, 95, and 96 which are all certified copies --

THE COURT: Those are 83, 4, 5, and 6, is it not?

MR. SMEAL: Yes, 83, 84, 85, and 86. Those are certified copies from the Recorder's Court.

THE COURT: Mr. Moore?

MR. MOORE: No objection, Your Honor.

THE COURT: State's 83, 84, 85, and 86 are admitted without objection.

Ready for supper? I believe it should be ready at this point. We'll conclude as far as you're concerned for the day and that ought to be ready for you, waiting on you. I'll ask you to leave your pens, pads, and notes in your seats. They'll be waiting on you when you return tomorrow.

I remind you again at this point that you've heard a good portion of the case presented. You've not heard all of it. You ought to continue to keep an open mind in the matter. You ought not to commence any deliberations or discussions amongst yourselves or allow anybody else to discuss the case with you or in your presence. You ought to just continue to wait, look, and listen until you've seen and heard it all and are in the jury room with your fellow jurors to commence your deliberations.

So, with those instructions, I'll ask you to go with the bailiffs, and we will recommence in the morning at nine o'clock. See you at nine o'clock.

[The jury was excused for the evening and retired from the courtroom at six o'clock p.m.. Proceedings continued, as follows, with the jury not present.]

THE COURT: I don't have my copy of the transcript we were looking at last night on the video. Where do we stand as far as -- I guess we had a lot of disagreement last night. Where do we stand tonight?

MR. PORTER: Your Honor, as cooler heads have prevailed and the requests of the defendant have been considered, in going down the list that Ms. Rogan provided us, I think there is a substantial area where the state can agree that, not that their position is correct, but that we would be prepared to make redactions on the record.

The primary area in which we cannot agree is this. The state feels that certain statements made by either Detective Latty or Detective Burnette are merely cumulative at this point. And, Your Honor, again the Court's rulings on the hearsay have been pivotal in our ability to agree to some of the --

THE COURT: Okay.

MR. PORTER: -- things that can come out of the tape and some of them can't, because clearly if the Court has ruled them out, they can't come in through Detective Latty if they couldn't come in through the witness. And so that has -- that has changed. There are a couple of cases we want to bring to the Court's attention --

THE COURT: What are they?

MR. PORTER: Your Honor, the first is Watson v. State, which is at 199 Ga. App. 825, and the -- that's in head note one. The second, and I have a copy for the Court and defense counsel --

THE COURT: Okay.

MR. PORTER: The second is Huckeba v. State which is at 217 Ga. 472, head note five. And, Your Honor, I'll provide the Court and defense counsel a copy of both of those cases.

THE COURT: Okay. There's also the case of Carroll v. State, which is at 261 Ga. 553, which is similar kinds of issues in which there was a redaction, and I don't -- I've just sort of had time to scan it, and we've got some other research I've had -- not had much time to review. Why don't we -- you want a few minutes? I need to pull my documents as well. How much time do you want?

MR. PORTER: Your Honor, I think actually just looking at the cases won't take that long. And looking over the list --

THE COURT: Ten minutes?

MR. PORTER: -- I think ten or fifteen minutes and we may -- ten or fifteen minutes now may save an hour at the back end.

THE COURT: Okay. Fifteen minutes?

MS. ROGAN: That's fine, Your Honor.

THE COURT: Okay.

MS. ROGAN: I need to go get our materials as well. I didn't bring them.

THE COURT: Okay. All right. Let's take fifteen minutes, and then we'll come back to it.

MS. ROGAN: All right.

[Break taken]

THE COURT: Where are we at this point, Mr. Porter, Ms. Rogan?

MS. ROGAN: We are considerably farther along than we were last night, Your Honor.

THE COURT: Good.

MS. ROGAN: Mr. Porter has agreed to, I'd say, the majority of our requests in terms of portions that we wanted deleted. We have maybe ten others to discuss and --

THE COURT: Do you want a few minutes to discuss them or are you ready to proceed to the rulings or what?

MR. PORTER: Your Honor, it may be the most efficient way to do it and save the most time, given the number in agreement, is to use the list that Ms. Rogan gave us last night, and if I can follow along in the transcript and just say we agree to delete that, we agree to delete the following --

THE COURT: Okay. You want a few minutes to do it or you just want to do it on the record now and have a ruling on it?

MR. PORTER: Your Honor, we've gone over it between ourselves.

MS. ROGAN: Yeah. I've marked my copies, so we're ready to do it on the record.

THE COURT: Okay.

MR. PORTER: And that was part of the break. I had written that I agreed and we would correlate it that way.

THE COURT: Okay. Let me ask, has anybody found what you think is any definitive law?

MR. PORTER: Your Honor, I found nothing on point.

MR. MOORE: Your Honor, I didn't either. I checked the West and Georgia law disk and I did not find anything on point.

THE COURT: Well, one case that seems to me that's on point is Carroll v. State at 261 Ga. 553. Did you look at that case? It's a '91 case. It seems to me it's pretty close. That's a case in which --

Here's what it says on 554: Appellant next contends that the video and audio tapes of his interview with police should have been redacted to remove certain statements by the police officers that were argumentative or that suggested there might be more incriminating evidence than was presented at the trial. Appellant argues that these were unduly prejudicial.

That's pretty close to the issues we've got in this case, it seems to me.

And the court held that where evidence is challenged on the ground that its probative value is outweighed by its tendency to unduly prejudice the jury, the trial court must exercise its discretion in determining admissibility. We find no abuse or discretion in this instance. Certainly, the relevance of defendant's own statements about the crime cannot be disputed. The trial court went through each page of the transcript of the videotaped interview before it was heard by the jury and made separate rulings regarding each statement that defendant found objectionable. The court properly required the prosecution to edit the tape to remove material that was irrelevant or that put appellant's character in issue. The court committed no error.

Now, that doesn't say that you couldn't do it some other way, but that's the way it was done in that case, and they do use the words, 'properly required,' and I know there's a line of cases that go the other way that would seem to suggest even coercive misrepresentations and those kinds of things, exaggerations and all that, during the course of an interview that result in a confession don't keep it out, and all that comes in. I mean, there are some cases I read that say that.

But this is a 1991 case, it's a unanimous Georgia Supreme Court case, and that's what I'm applying.

MR. PORTER: Your Honor, if I may, the state has cited the Court to Watson, and the state has never contended that redaction is not an appropriate measure in this case for certain statements that were made in the course of the videotaped interview. The state has contended that the specific objections made by the defendant are not -- do not rise to the level that require redaction.

And I would note in the case cited by the Court, Carroll, the Court ordered the removal of evidence or statements which bring the defendant's character into issue or that are irrelevant. And, Your Honor, I think that goes along with the argument we made last night that the Court -- that the redacted portions have to bring in some other rule of evidence in order for them to be redacted.

And we would call the Court's attention to Watson in which very similar statements were made, where the officer, in the course of his interrogation, told the appellant that the police had enough evidence against him, that during the interview after the officer explained to the appellant that his information was based on conversations with other witnesses and that these witnesses would be testifying at trial, this led to Frederick's remark that "what we are telling you right here, what this warrant states, if we didn't believe we had enough evidence to say, 'hey, we have got it,' that would be a different story."

THE COURT: Well, some of the things that bother me about, I guess, in this particular case in putting these together, you know, is this is not a shoplifting case, you know, on the one hand, and the Carroll case is a Supreme Court case as opposed to the Watson Court of Appeals, if there's any disagreement in how you construe them or what they say. And I guess considering that if there is a conviction and if there is a death sentence in this case, it will be a flyspeck for the next fifteen years.

And I guess my inclination is to put a conservative construction on all that taken together, and I think that that sort of construction, basically, is what -- I guess Carroll doesn't say that's the only way. I don't read it that that's the only way you can do it, that you have to do it, that this is a must-do kind of procedure, but it says -- uses words like proper and words like no error.

MR. PORTER: But, Your Honor, going along with what you said in the Watson case, the Court of Appeals said in the same year that curative instructions regarding specific facts are also a solution, but I think the next step --

THE COURT: I understand. And I guess, historically, that's the line of cases --

MR. PORTER: Yes, sir.

THE COURT: -- but Carroll doesn't say that. It doesn't say, well, it's okay to just put it all in and give some curative instructions.

MR. PORTER: Well, Your Honor, I think the Court in Carroll pre-empted the need for curative instructions. THE COURT: Sure did.

MR. PORTER: But I would also cite the Court to the Supreme Court case or, excuse me, the Georgia Court of Appeals, which is a 1995 case, where the court set up a test where that it said that it would not be admissible -- what is on the tape cannot be admissible unless it would be admissible under cross-examination. So in that case, the trial court set up a test and if the state met that test --

THE COURT: Okay.

MR. PORTER: -- then it would be admissible --

THE COURT: Well, that's basically the line of Carroll then, because Carroll talks about --

MR. PORTER: Relevancy and character.

THE COURT: Yeah. I mean, basically, applying the rules of evidence that if you couldn't get it in at the trial, then you can't get it in on the tape.

MR. PORTER: Your Honor, and the position of the state in regard to that is I would be able to confront Chapel, if he took the stand, with much the same type of questioning that he was confronted with with Latty, and I don't think there can be any argument about that. On cross-examination, I would be able to confront Latty with -- or, excuse me, Chapel with the same types of questions asked for the same types of explanations and confront him with it as long as I have produced that evidence in court.

THE COURT: Oh, I agree.

MR. PORTER: And I think that in -- I don't want to seem like I'm arguing with the Court, but I think that is a correct standard, and that is the basis of the failure to agree to some of the defense requests.

THE COURT: Okay. All right. Well maybe we'll just -- okay. All right. Well, what was the most recent Court of Appeals case you cited?

MR. PORTER: Huckeba v. State, Your Honor, which is at 217 Ga. 472, head note five.

THE COURT: Okay.

MS. ROGAN: Georgia Appeals.

MR. PORTER: Excuse me, Georgia Appeals.

THE COURT: Yeah, I've got -- well, the copy you gave me, I've got it in the chambers.

MR. PORTER: Yes, sir, I gave you a copy.

THE COURT: Okay. All right. Well, maybe what we need to do is let's just proceed on with the disagreements and let's just knock them out whenever you're ready.

MS. ROGAN: Okay. I would like an opportunity at some point to make a record about these two cases and the Carroll case as well, but it can wait until the end --

THE COURT: Well, why don't you wait and see what kind of rulings you get and you can include it all together.

MS. ROGAN: Okay.

THE COURT: Okay?

MS. ROGAN: Fine.

THE COURT: All right. Where's the first one?

MR. PORTER: Do you want to call these, Elizabeth, and I'll just say I respond or do you want me to say what I agree to as I go down your list?

MS. ROGAN: Why don't -- either way.

THE COURT: Maybe it would be good just to cover them all to make sure we haven't omitted one.

MS. ROGAN: Yes. You can go ahead. You've got your list.

MR. PORTER: All right.

THE COURT: Just take it from the top and if we've got an agreement, then everybody understands.

MS. ROGAN: Yes.

MR. PORTER: Your Honor, as to Page 26, the defense requested that Line 24 and 25 be omitted.

THE COURT: Right.

MR. PORTER: The state is prepared to agree that the words 'best' and 'who saw the most' should be deleted but that the remainder is a correct statement of evidence which has been produced.

THE COURT: Ms. --

MS. ROGAN: That is fine with the defense. It was the --

THE COURT: All right. You're going to delete -- say it again.

MR. PORTER: The word 'best' and 'who saw the most' so that the statement will then become, 'The witnesses said that they saw the car stopped by the officer somewhere between 9:45 and ten o'clock.'

THE COURT: All right. Is that the agreement, Ms. Rogan?

MS. ROGAN: That's correct.

THE COURT: So stipulated. What's next?

MR. PORTER: Your Honor, the next is Page 27. They had requested Lines 1, 2, and 3. The state is going to agree to remove, 'No doubt in their mind that's when she was stopped there.'

THE COURT: All right. Ms. Rogan?

MS. ROGAN: That's fine.

THE COURT: So stipulated.

MR. PORTER: Your Honor, the next request was Page 28, Lines 23 through 25, and the state cannot agree to the redaction of that portion.

THE COURT: All right. What's your argument, Ms. Rogan?

MS. ROGAN: Well, this begins hearsay information from the friends of Ms. Thompson. I do not have a problem with keeping Lines 23 through 25 on Page 28 and then Lines 2 through 6 on Page 29. Those are the two portions of that that the state doesn't feel it can agree to.

THE COURT: And that's 2 through what?

MS. ROGAN: 2 through 6.

MR. PORTER: 2 through 6. They're prepared to withdraw their request, Your Honor.

MS. ROGAN: Well, we're not prepared to withdraw. I'm just not going to -- I'll leave that to the Court. Let me say that. I'm not conceding that that doesn't involve inadmissible hearsay, but I will leave it to the Court.

THE COURT: What's your position, Mr. Porter?

MR. PORTER: Your Honor, our position is that this is evidence that has been produced through the testimony of witnesses, that it's consistent with the rulings of the Court as far as the admissible hearsay; and, therefore, it is cumulative in its effect, and we believe that it is a legitimate interrogation technique which the officer can use; therefore, it should be admitted in the presentation of the videotape.

THE COURT: Along with a cautionary instruction?

MR. PORTER: Your Honor, the cautionary -- I don't have any objection to a cautionary instruction. When we finish this, the state's going to ask for a cautionary instruction regarding editing. If the Court wants to give a Watson type cautionary instruction, I certainly have no objection to that.

MS. ROGAN: That was going to be my request.

THE COURT: Yeah. It seems to me that would be appropriate, because you've got Latty or whoever with all this hearsay, and it seems to me that maybe Watson, or one of them I noted, I thought the language --

MS. ROGAN: It is Watson, Your Honor.

THE COURT: -- in that case was good as far as a cautionary instruction, and I was contemplating adopting that.

MS. ROGAN: Yes. Okay. I was going to make that request.

MR. PORTER: Your Honor, we have no objection. I think that's a good point.

THE COURT: Okay. All right. One through 6 stays in. All right. What next?

MR. PORTER: Your Honor, 2 through 6.

THE COURT: Okay.

MR. PORTER: And the Court has not ruled on Page 28.

THE COURT: What about the bottom of 29?

MS. ROGAN: That's what we're getting to.

MR. PORTER: Your Honor, has the Court ruled on Page 28, Lines 23 through 25?

THE COURT: 28? I thought those were stipulated.

MS. ROGAN: No. We don't agree to that. I consider that to be inadmissible hearsay inasmuch as it's triple or more hearsay on Lieutenant Latty's part, so I would leave it to the Court, and I will request that in the event that it stays in that the cautionary instruction described in Watson be given, but I would --

THE COURT: That will stay in. I'd leave it in. What next?

MR. PORTER: All right. Your Honor, moving on to Page -- still on Page 29, there was a request for the redaction of Lines 12 through 29. Your Honor, the state is prepared to agree to the redaction beginning on Line 14 with the word, 'They,' and the phrase is, 'They tell us that she had related to people how you had followed her and -- had followed her down PIB when she went to work and one night followed her as far as Suwanee and one night followed her as far as almost to Duluth and one night you stopped her and talked to her a minute' dash. We would agree to the redaction of that.

THE COURT: Ms. Rogan?

MS. ROGAN: I certainly don't dispute -- you know, I will agree with their agreement to redact. I have the same position on the portion they don't concede or agree to in terms of it being hearsay by -- on the part of Lieutenant Latty.

THE COURT: All right. I think that's appropriate. We'll leave in 12 through 14 and redact the balance of Line 14 through 19. What else?

MR. PORTER: Your Honor, they didn't -- the overall request was 12 through 29. We believe that Chapel's response where he says, 'She's saying that,' and Lieutenant Latty says, 'On her way to work she was telling various people this and how she also told them that you told her -- that you told her.' And, Your Honor, I don't -- somewhere along this line, we have to begin a redaction. The redaction begins and I wrote it, 'And she told more than once person this that in regard to the hundred dollar bill and the band that you were talking about,' I believe all that's admissible, Your Honor. And the state --

THE COURT: Okay. What are you proposing to redact?

MR. PORTER: Your Honor, I'm sorry. I made a mark that indicated to me a redaction. The state is not prepared to redact any of that response by Detective Latty -- Lieutenant Latty.

THE COURT: Well, that's in by way of the hearsay, is it not?

MR. PORTER: Yes, sir.

THE COURT: So what's the problem with that, Ms. Rogan?

MS. ROGAN: Well, the same problem I have with everything, that Lieutenant Latty doesn't know from personal knowledge any of this, so it's hearsay but --

THE COURT: But these cases say -- well, if we were in the trial of the case and Officer Latty were on the stand and he testified that these witnesses -- maybe you'd have to make them specific, I guess is the only issue in mind. But if it's in evidence, it's been admitted, it's in evidence, and somebody states it by way of hearsay, there's not a hearsay objection anymore, is it?

MS. ROGAN: Well, it's hearsay as to him. These witnesses didn't say it to him. They said it to somebody else who then said it to him.

THE COURT: Well, I know, but if it's in evidence --

MS. ROGAN: I think that --

THE COURT: -- I mean, if something is in evidence and you say, well, you can't say that because it's hearsay, well, so what at that point. It's in evidence.

MS. ROGAN: Well, so what, it's still hearsay, and we're not going to have Lieutenant Latty to cross-examine about it, and it's bolstering. Those are the grounds of our objection.

THE COURT: Okay.

MS. ROGAN: It's not information he has any personal knowledge about.

THE COURT: All right. That will stay in.

MR. PORTER: Your Honor, the next is Page 31 --

MS. ROGAN: Hang on one second, Danny. I had also -- I thought I'd mentioned on Page 30, Line 9.

MR. PORTER: You had not --

MS. ROGAN: Did I not mention that?

MR. PORTER: You had not mentioned that.

MS. ROGAN: Okay.

MR. PORTER: Your Honor, based -- it's a statement that says, 'It's detailed information. It's detailed information.' We have no objection to redacting that.

MS. ROGAN: Okay.

THE COURT: Where is that?

MS. ROGAN: Line 9.

MR. PORTER: Page 30, Line 9, Your Honor.

THE COURT: 'It's detailed' -- all of Line 9?

MR. PORTER: Yes, sir.

THE COURT: Okay. That was not one we looked at last night.

MS. ROGAN: I'm sorry. I must have neglected to mention it. I had intended to.

THE COURT: Okay. All right. That'll be fine. So stipulated.

MS. ROGAN: So that's out?

THE COURT: Yes.

MS. ROGAN: Okay.

MR. PORTER: The next is Page 31, Your Honor, Lines 2 through 7. Your Honor, I believe that's a correct summary of the evidence that's been produced so far, and I cannot agree to the redaction of that.

MS. ROGAN: Yeah. I misread that, I think. I do have some objections to references that Lieutenant Latty makes to more than one person identifying Mr. Chapel, but that's not the context of this. I mean, all they're identifying is seeing an officer and there clearly has been testimony about that in court, so --

THE COURT: All right. Do we have -- is there any issue, then?

MS. ROGAN: No, there's no issue.

THE COURT: All right. Page 31, there's no issue; is that correct?

MS. ROGAN: That's correct.

THE COURT: All right. So stipulated.

MR. PORTER: Your Honor, the next is Page 32. There was a request to remove Lines 24 and 25. It's the beginning of a statement that moves over to Page 32 and so it might be sensible to take it all up.

The state cannot agree with that, Your Honor. Mr. Chapel says, 'I mean as circumstantial as this is,' and Latty, 'It don't look good, but,' and Latty says, 'It's not circumstantial, Mike. Let me tell you. It's not circumstantial when someone picks you out of a photo lineup and said, That's the officer I saw standing by the car, passing at a high rate of speed, probably going on the call to Arden Drive. That's not circumstantial. You're looking at a murder charge.' Your Honor, I believe that's a correct statement of the evidence that's come out.

THE COURT: Okay. So what's the objection?

MS. ROGAN: My objection is that that's commenting on the evidence and on the weight and the strength of the evidence, which is the ultimate conclusion for the jury and it's not for Lieutenant Latty to be testifying about.

MR. PORTER: Your Honor, my position is that the defendant in his own statement has brought it up and characterized the evidence, and Detective Latty is responding to that.

MS. ROGAN: I'd also point out, Your Honor, that it's an inaccurate statement of what testimony we have heard. Mr. Kautter had never -- has never testified that he was the same officer he saw pass him as he saw standing by the car. I know that's an inference the state would like the jury to draw, but he never testified to that fact.

THE COURT: Well, that's true enough. Delete it.

MR. PORTER: The entire -- from -- or the part that says, 'That's the officer standing by the car that passed me at a high rate of speed, probably going to the call on Arden Drive.' Your Honor --

THE COURT: I think delete it. Delete it and let's be done with it.

MR. PORTER: Well, Your Honor, I realize that that's easier, but the state feels that without that response by Detective Latty to the defendant's statement --

THE COURT: Well, if you want to put his response in where it goes down and says, 'When somebody --'

MR. PORTER: 'Somebody picked you out of a photo lineup.'

THE COURT: 'It's not circumstantial when somebody picks you out of a photo lineup.' I think that's consistent with the facts of the case.

MR. PORTER: Your Honor, that's what I'm arguing for.

THE COURT: All right. I don't have a problem with that. The balance of it is struck.

MR. PORTER: Well, then, to resume, Your Honor, at 'That's not circumstantial. You're looking at a murder charge.'

THE COURT: Ms. Rogan?

MS. ROGAN: I still think that's commenting on the evidence, but I will leave that to the Court.

THE COURT: All right. You can leave it in that way. Strike, 'and said that's the officer I saw standing,' all of Line 2, all of Line 3, and Line 1 after the word, 'lineup.'

MR. PORTER: Your Honor, the state can agree to that.

THE COURT: Okay.

MR. PORTER: The next, Your Honor, is Page 34. There's been a request to redact Lines 20 through 23; and, Your Honor, I note we can agree with that assuming that the redaction ends on Line 23 with the word 'car.'

MS. ROGAN: Uh-huh.

THE COURT: Any objection?

MS. ROGAN: No. I don't have an objection to that.

THE COURT: All right. So that will be one sentence starting on Line 20 and all of 22, all of -- well, all of 21, all of 22, and through Line 23 to the word 'car.'

MS. ROGAN: That's right.

THE COURT: Okay. Mr. Porter?

MR. PORTER: Your Honor, the next is --

THE COURT: So stipulated. All right. What's next?

MR. PORTER: Yes, sir. The next is Page 38, Your Honor. There has been a request to redact Lines 21 through 25.

MS. ROGAN: Well, it's really the end of Line 21. The part -- the beginning of that.

MR. PORTER: Where you say, 'Now you told her.'

MS. ROGAN: Uh-huh.

MR. PORTER: Your Honor, that was ruled inadmissible or I don't believe it was ever even brought up in regard to the hearsay witnesses about bluffing Michael with the money band or anything like that.

THE COURT: I don't recall it either.

MR. PORTER: So I can't argue that that's cumulative, Your Honor. I believe that should be redacted.

THE COURT: All right. That's which portion?

MR. PORTER: Beginning on Line 21 with the word 'now.'

THE COURT: All right. And going through what?

MR. PORTER: Going through Line 25 all the way on to Page 39, ending on Line 6 with the word 'warrant.'

THE COURT: Ms. Rogan?

MS. ROGAN: That's fine, Your Honor. That was what my objection was.

MR. PORTER: And that takes care of it.

THE COURT: All right. So let's be sure. On Line 21 commencing with the last two words be stricken.

MR. PORTER: Yes, sir.

THE COURT: All of Line 22, 3, 4, and 5, and on Page 39 strike the first five lines and then the words 'take a warrant' on Line 6.

MR. PORTER: Yes, sir.

THE COURT: So stipulated.

MR. PORTER: The next is Page 40, Your Honor. I wasn't clear on what the objection was. It was an objection to Lines 13 through 16. Your Honor, the state can agree, beginning on Line 14 with the word 'the' and the statement would be, 'The witnesses, numerous witnesses, have established that fact.' The remainder, I believe, is a correct statement of the evidence that's been produced.

MS. ROGAN: That's part of my disagreement, Your Honor. Three times on the page, on Line 4, which, if I neglected to mention last night, is included in this same issue, Lines 13 through 15, and then on 16. There's a reference made to a big guy, big fellow, large man. The witnesses have not actually testified to that. Most -- there are very few witnesses who could describe the person they saw at all, and the descriptions we have had have been medium build, 6 foot tall, nothing about a large guy. Lieutenant Latty's obviously trying to get, you know, impress upon Mike that they're describing this huge man like he is. Well, the witnesses simply haven't described that. And I don't think it's -- I don't think it's reflective of evidence that we've heard in court.

THE COURT: Mr. Porter?

MR. PORTER: Your Honor, Mr. Kautter testified that he was his build but bigger. Mr. Omodt testified that he was six-two, six-three, large build. Dr. Brusie testified that he couldn't tell how tall he was, but he was a large-chested individual, broad-shouldered. I think it's a reasonable inference from the evidence that has been produced and the evidence that Lieutenant Latty had at the time of the interrogation. I'm prepared to say that with where he tries to bolster by saying, 'Lots of people have said this,' --

THE COURT: Which portion are you proposing to strike?

MR. PORTER: Beginning on Line 14 with the word 'the,' the entire Line 15, and the first word of Line 16.

THE COURT: I believe that's appropriate, and that will be the order of the Court.

MS. ROGAN: Well, for the record, Your Honor, then on the next Page 41, there's another reference to that large officer, which I would have the same objection to, Line 2.

MR. PORTER: Your Honor, I can't play catch up this fast.

MS. ROGAN: I'm sorry. I'm sorry.

MR. PORTER: Last night I was told that this was the list. Tonight I'm told there's another list.

MS. ROGAN: I know.

MR. PORTER: Your Honor, I can only be so accommodating.

THE COURT: All right. Where do we stand, Ms. Rogan?

MS. ROGAN: Well, I'm just, for the record, noting another instance in which, on Page 41, and again I thought I had mentioned this last night that --

THE COURT: I don't show it either.

MS. ROGAN: -- at Line 2 he makes a reference to that large officer.

MR. PORTER: Your Honor, if I might, the officer, in the course of a four-hour interrogation, part of an interrogation technique is the repetition of evidence, the repetition of statements, the searching for inconsistencies. I don't think that the Court at this --

THE COURT: I don't think -- I don't --

MR. PORTER: If he said it a hundred times.

THE COURT: I don't have a problem with what you're talking about on Page 41, Ms. Rogan. I'm going to leave that as it is. The other thing is there's got to be a point where we've got the issues set. I mean, you know, we stayed over last night and said, 'what's the issues,' and that wasn't one of them last night. You know, I mean that's -- I'd like to have them -- you know, let's put them to rest.

MS. ROGAN: Right. I understand. I thought I had mentioned that as well and I apologize if I didn't.

THE COURT: Okay. Mr. Porter, what's next?

MR. PORTER: Your Honor, the next according to my list is Page 43, Line 6 and 7. We agree that they should be redacted.

THE COURT: All right. Line 6 and 7 come out. So stipulated.

MR. PORTER: Next is Page 46, Your Honor, Lines 8 and 9. Your Honor, I don't really have a position on it. There's been no evidence regarding Mr. Kautter's record one way or the other. I don't think he's ever been -- he's been questioned, but I have no objection to the redaction of that.

THE COURT: Ms. Rogan?

MS. ROGAN: Well, that actually -- I want the whole line redacted. The problem I had with that is that Investigator Burnette says, 'The guy don't know you from Adam,' which is clearly not what the witness said. He's testified that he did in fact recognize Mr. Chapel from a previous encounter at a fast food restaurant, so it's simply an incorrect statement by Investigator Burnette and shouldn't be included.

THE COURT: Yeah. All right. Well, there's no objection to its being redacted, so --

MS. ROGAN: No, that's correct.

THE COURT: -- so strike it. So stipulated.

MR. PORTER: Your Honor, then moving on to Page 54, according to my list, and really on to Page 55, Your Honor --

THE COURT: Okay.

MR. PORTER: -- there was a request to redact Lines 24 and 25. Your Honor, only in making sense of it, I began with what I assume to be the reaction with the word, 'And we got the man that we've already talked to Mike, who says, yes, eight pictures, not six,' and then moves on to a description of the lineup. Your Honor, that is not cumulative. We would expect and I can state in my place that that evidence will come out, that, in fact, a lineup of more pictures than normal was presented to the witness.

THE COURT: Ms. Rogan?

MS. ROGAN: Well, I think that's clearly bolstering of the identification. The fact that the manner -- whether or not it was a fact, the manner in which he's describing that we put more officers in there than normal bolsters the identification, and I don't think that's appropriate.

THE COURT: Also, one part of it, 'And they're officers [unintelligible]'. We've got a piece of it and nobody knows what it says apparently.

MR. PORTER: No, Your Honor.

THE COURT: Let's strike it.

MR. PORTER: So you're going to grant the entire request as far as striking it?

THE COURT: Yes. On those five or six lines.

MR. PORTER: Your Honor, I believe there may be other references to --

MS. ROGAN: There's two other times that Investigator Burnette makes that reference.

MR. PORTER: And we would make the same -- I don't have those. I think it's better to go -- just keep going down the list.

MS. ROGAN: Okay.

MR. PORTER: I think it's more efficient.

THE COURT: Okay. What next?

MR. PORTER: The next, Your Honor, is Page 64, Lines 7 through 11. And, Your Honor, we believe that that has not -- was disallowed in the ruling regarding the hearsay and should be redacted.

THE COURT: All right. That's 7 through 11?

MR. PORTER: Yes, Your Honor.

THE COURT: Ms. Rogan?

MS. ROGAN: That's fine with me, Your Honor.

THE COURT: So stipulated.

MR. PORTER: The next is Page 66, Your Honor, Lines 23 through 25. Your Honor, we believe that that's an accurate statement of the evidence that's come out.

THE COURT: Ms. Rogan?

MS. ROGAN: I thought you said you agreed to that.

MR. PORTER: Well --

THE COURT: 'This guy without a mustache passed me down there. I saw him standing by the side of the car.' He never said that, did he? I mean, he identified the defendant --

MR. PORTER: No, sir. I'm sorry, Your Honor. That is an inference that we would wish the jury to draw, but I can't say a statement like that is accurate.

THE COURT: Okay. All right. Okay.

MR. PORTER: I did state that we agreed to the redaction.

THE COURT: Strike those three lines, then. So stipulated.

MR. PORTER: The next, Your Honor, that I have is Page 71, Line 18 through 21.

MS. ROGAN: That's the same objection I made with regard to, 'Don't know you from Adam,' when that's not what the testimony was established.

MR. PORTER: Your Honor, I put initially that we would not agree to the redaction of that. We will agree to the redaction of it.

THE COURT: All right. We'll strike 18 through 21. So stipulated.

MR. PORTER: The next is Page 77, Lines 16 through 18, Your Honor. And, Your Honor, this is another one of the issues about the eight photographs, not the six.

MS. ROGAN: 'More than we normally put in.'

MR. PORTER: 'More than we normally put.' He didn't mention a specific number. Your Honor, I can only state in my place that I intend to introduce that evidence and that it is an accurate statement of the evidence in this case. We believe that it's a legitimate interrogative technique, and it goes to one of the main issues that is the thrust of the defense case in this, which is the shoddy, sloppy investigation that was done, and I think it goes to showing that Officer Chapel was, in fact, given really more of a break than the average burglary suspect.

THE COURT: All right. Delete it. Put it in with your witnesses.

MR. PORTER: Yes, sir. All right.

THE COURT: Okay.

MR. PORTER: Your Honor, I would just want to clarify, 'I understand that when you show a photographic lineup,' -- Your Honor, we're going to delete the reference to 'the eight photographs, more than we normally put in,' and try and make some sensible statement out of that. But I can only say that we would -- will delete the offensive reference, but I'm going to have to look at the actual deletion to make some kind of a sensible statement out of what we have.

THE COURT: Okay. But as far as tying it together and something, maybe y'all can get together, and it seems to me everybody has an interest in having it come out in some sensible form so there's not any inference either way. I mean, I guess if you've got gaps and inconsistencies and it doesn't make much sense, then that may operate against the state or the defendant, so it seems to me having a little smooth flow would be in everybody's best interest.

MR. PORTER: Well, Your Honor, we have this on disk, and we're able to reformat it. The tape is going to show blanks, but the transcript, we'll be able to reformat into a coherent whole.

THE COURT: Okay. But you're not -- we're not contemplating providing the jury anything except listening to the tape.

MR. PORTER: No, Your Honor. I'm contemplating providing them with a transcript because of the quality of the tape.

THE COURT: Well, it may not be such a bad idea with -- the sound on some of it's kind of hard to follow. Is there any objection to that? That would probably be helpful all the way around.

MS. ROGAN: No. We would make that request as well.

MR. MOORE: Yeah, I agree, Your Honor, because I had to play a lot of it several times when I was listening to it, stopping it and playing it back --

THE COURT: Well, I was struggling listening to it when we had it the first day. I think everybody does. Okay. All right. We'll have eighteen copies then, right, for the jury?

MR. PORTER: Yes, sir.

THE COURT: Okay.

MR. PORTER: Next, Your Honor, on my list is Page 78, Lines 13 through 21.

MS. ROGAN: And my objection here is to the use of the word 'they.' Now, in some of this, 'they' might be appropriate. I'd say 13 through 19. In Line 19, the first 'they' is inappropriate.

THE COURT: Yeah. It says, 'They see him clearly enough to recognize him, a photograph.' And we only got one witness who has made an ID.

MS. ROGAN: There's only one witness, right. It's not more than one. And they also -- you know, it says, 'Same officer they saw down on the side of the road.' Well, that's not what their testimony was.

MR. PORTER: Your Honor, if I might suggest as an agreeable -- is begin the redaction on Line 19 with 'Same officer they saw down on the side of the road. They see him clearly enough to recognize him, a photograph of him, but say he didn't have the mustache.'

THE COURT: I don't have a problem with that. It seems to me --

MS. ROGAN: All right.

MR. PORTER: But retain everything above that.

THE COURT: Yeah.

MS. ROGAN: I mean, it's inaccurate to the extent that --

THE COURT: Strike about 19 and a half through 22.

MS. ROGAN: Right.

THE COURT: Okay.

MS. ROGAN: But prior to that, on Line 19, they didn't both look over. Mr. Omodt said very clearly that he was focusing on driving. If the rest of it comes out, it's harmless, so I'm not going to press it, but I just wanted to --

THE COURT: All right. So 19 and a half through Line 22, then?

MS. ROGAN: Right.

THE COURT: All right. That will be deleted and so stipulated.

MS. ROGAN: Okay.

THE COURT: All right. What about Line 23 and through 5 on 78?

MR. PORTER: Your Honor, I think the Court's already ruled essentially on that.

THE COURT: All right.

MR. PORTER: As far as the statement says, 'Don't know you from Adam.' Your Honor, I was kind of in a difficulty here because they said 23 through 25, but when you look, it begins, 'Mike, there's not but one conclusion, not but one conclusion any rational person who understands the nature of evidence is going to draw.'

MS. ROGAN: Right. I can't argue with that. I mean, that --

MR. PORTER: I believe the redaction should just be the statement, 'Don't know you from Adam.'

MS. ROGAN: 'Don't know you from Adam.' That was really my intent.

THE COURT: All right. So we'll strike the words, 'Don't know you from Adam,' on Line 24.

MR. PORTER: And begin with, 'Mike, there's not but one conclusion.'

THE COURT: All right. Ms. Rogan?

MS. ROGAN: That's fine.

THE COURT: So stipulated.

MR. PORTER: Your Honor, Page 80, there was a request to redact Lines 17 through 22. That has to do with business failings and statistics and, Your Honor, the state has no objection to the redaction of that.

THE COURT: All right. 17 through 22 on Page 80 will be deleted. So stipulated.

MR. PORTER: And, Your Honor, the stuff that's above it, where he's talking about it takes guts to go out in business for yourself, there was no objection to that.

MS. ROGAN: No, that's fine.

MR. PORTER: And so I would end or begin the redaction on Line 17 with the word 'And.' 'And you've done that. But in doing these things and going out on a limb,' yadda, yadda, ya.

MS. ROGAN: Right. Now, the context, Lieutenant Latty's first words on Line 24 don't really make sense, but that's up to you. I'm not making a request.

MR. PORTER: If we can take the two words out, 'or less,' --

MS. ROGAN: Yeah.

MR. PORTER: -- to make it make sense, Your Honor, we will, but that's a technical question.

MS. ROGAN: Okay. It's not really needed.

THE COURT: Okay.

MS. ROGAN: Okay.

THE COURT: Page 81?

MR. PORTER: Page 81, Your Honor, they've requested the redaction of Line 8 and 9. I believe it begins on Line 8 with, 'You're going to proceed on. You've got to have money for these things. People get into tight spots.' Is that --

MS. ROGAN: That's correct.

MR. PORTER: The state agrees to the redaction of that.

THE COURT: All right. So that would be about 8 and three-fourths through all of 9.

MS. ROGAN: Correct.

MR. PORTER: Yes, sir. Beginning on Line 8 with the words, 'You're going to proceed.'

THE COURT: So stipulated.

MR. PORTER: And then there was a request on Page 81, Your Honor, for Lines 13 through 17. I don't really know where that begins.

MS. ROGAN: It begins 'they will do,' the end of that line.

MR. PORTER: All right. If it begins 'they will do,' in any event, we've agreed to the redaction.

MS. ROGAN: Okay.

THE COURT: All right. So strike the part where it says 'and they will do' on Line 13?

MS. ROGAN: Uh-huh.

MR. PORTER: Yes, sir.

THE COURT: And through Line 17, it says 'we shouldn't do'?

MR. PORTER: Right.

MS. ROGAN: That's correct.

THE COURT: All right. So stipulated.

MR. PORTER: The next page, Your Honor, is Page 87. There has been a request to redact Lines 7 through 25. And, Your Honor, moving on to Page 88, Lines 1 through 5 are basically part of that same colloquy.

THE COURT: All right. So what's the state's position?

MR. PORTER: Your Honor, the state cannot agree to the redaction of those.

THE COURT: Ms. Rogan, what's your argument?

MS. ROGAN: I'm going to leave that to the Court, Your Honor.

MR. PORTER: Your Honor, we believe --

THE COURT: Are you requesting it be deleted?

MS. ROGAN: I am requesting it.

THE COURT: And on what grounds and why?

MS. ROGAN: I think it's Lieutenant Latty commenting on the evidence impermissibly. He doesn't go quite so far as to draw the conclusion that the jury is being asked to draw, but he gets close enough to it that I find it objectionable, and I would request that it be deleted.

MR. PORTER: Your Honor, we believe this is a legitimate area for Detective Latty to -- or Lieutenant Latty to explore in confronting the defendant with the evidence that has been produced at trial.

[Pause in proceedings]

THE COURT: That will stay in.

MR. PORTER: Your Honor, the next I have is, basically, Page 90 and 91, beginning on Line 24 and 25 and moving to Line 1 through 4 -- excuse me, 1 through 4 of Page 91. Is that --

MS. ROGAN: Yeah. We're going to withdraw our objection to that in light of evidence that's been presented. My objection was that it was hearsay, admitted hearsay.

THE COURT: Okay.

MS. ROGAN: Because Investigator Burnette was saying, 'Yeah, I think that's what I heard.'

THE COURT: Okay.

MS. ROGAN: But there has been and will be more financial information, so it can stay.

THE COURT: So stipulated.

MR. PORTER: Your Honor, the next is Page 98, beginning Lines 14 and 15, and then moving to 19 through 22. And, Your Honor, really moving on to Page 99, Lines 20 through Lines 1 and 2 on Page 99.

THE COURT: Ms. Rogan?

MS. ROGAN: My objection to that was that it's commenting on the evidence and it's also inaccurate in terms of the evidence that's been presented. Little things like the mustache in the lineup, there really hasn't been any testimony about that at all. So I don't think it's accurate.

THE COURT: Well, we had --

MR. PORTER: Mr. Kautter testified, Your Honor, that except for the mustache that the guy in the picture, Number 3, was the guy that he saw.

MS. ROGAN: Well, he equivocated on the mustache.

THE COURT: Yeah, that's my recollection. It was sort of, he said, 'Well, he didn't have a mustache,' and then it got to kind of be, 'Well, I don't think he did,' or something like that, as opposed to an emphatic, 'except for the mustache.' And I think what we've got here is an emphatic 'this witness said he didn't have -- except for the mustache,' and then in the testimony, he didn't really say that.

MR. PORTER: Your Honor, are we going to -- at that time Detective Latty, or in this case Investigator Burnette was confronting the defendant with the evidence as he knew it. How fine are we going to split this hair? How fast are we going to push this camel through the eye of the needle. I mean, what's the difference between Mr. Kautter saying here today or the other day when he testified, 'Well, he may have had a very, very thin mustache or he might --' or 'I don't remember that he didn't have a mustache.' But the key was is that at that time, the photograph had a mustache, and he said, 'Except for the mustache, that's him.' That's the gist of the testimony.

MS. ROGAN: It's bolstering an identification that hasn't been proven.

THE COURT: Well, my problem, I guess, with this kind of circumstance is, and I think Carroll sort of addresses that a little bit, as I recall it -- the one thing that bothers me about it -- I mean, this is a case we don't have a confession. I mean, there is no confession here.

MR. PORTER: That's correct.

THE COURT: I mean, as opposed to a lot of cases where, you know, they say, well, all this is all right, confession's okay, but it's not a confession. What we've got is a three-and-a-half-hour denial. And so one of the complicating factors, it seems to me, in a case like this is, where you've got a three-and-a-half-hour denial, if you have question after question after question saying, 'now, we know you're guilty, you did it, and these witnesses say you did it,' and all this, and it's consistently, 'no, it isn't,' then what kind of prejudicial impact have you brought in on a defendant who consistently is saying, 'No, I'm not guilty.' But what you have -- what you wind up with instead of a denial, you have a confession of sorts by weight of the questions posed about 'what these witnesses said and what we think is said, what we know you did, and what our investigation shows.'

MR. PORTER: Your Honor, I think the Court has somewhat mischaracterized this as a three-and-a-half-hour denial. It's a three-and-a-half-hour varying acknowledgment of 'if that's true, then, yeah, I got a problem,' but, you know, 'if that's true, if that's true.'

THE COURT: Kind of the essence of it was, 'yeah, it looks bad. Yeah, I know that's a lot of evidence.' I mean, you know, 'it sure does look bad.'

MR. PORTER: But, Your Honor, there aren't many denials when you look at the tape in the overall context of it, and I think that's the important thing. If we could flyspeck, as the Court used the word flyspeck, a transcript, but I think in the context of the overall tape, that's a different story.

THE COURT: I understand your argument, and I think in some of those cases it seemed to suggest that. I think Carroll, it seems to me, tends to go the other way. If you've got the evidence, if you've got a witness who can put these things in, then I don't think it needs to be bolstered or exaggerated or that sort of thing by way of hearsay in the way of questions to a non-confession like that. Strike it. 14 and 15 are stricken, 19 through 22.

MR. PORTER: Your Honor, then we might as well strike from 14 through Page -- because all we've left is two responses.

THE COURT: All right.

MR. PORTER: 'Uh-huh' and 'People say I'm there.'

THE COURT: That'll be fine. All right. And Line 1 and 2 of 99. Let's see. That will be deleted. What's next?

MR. PORTER: Your Honor, the next on my list, I have Page 100, Lines 18 through 22. Your Honor, I agree -- I wrote that I agreed to the redaction of those pages.

THE COURT: All right. Those will be deleted. So stipulated.

MR. PORTER: And then, Your Honor, we move to Page 102, Lines 4 through 14, and I, assuming -- I don't know, Your Honor, I don't know where they want the redaction to begin, first of all. But, second of all, these are matters which are in evidence.

THE COURT: Ms. Rogan?

MS. ROGAN: My redaction started on, 'She was expecting a call from you that night.'

THE COURT: What's objectionable about that?

MS. ROGAN: On the basis -- prior to the testimony we had today, on the basis that it was hearsay. Now, given that that's come out, I mean, I still object to Lieutenant Latty talking about it, but to the extent that it's come out in Court --

THE COURT: Well, the other side of the coin, it seems to me, is if you take the tack that, well, it's in evidence and if the officer, during the course of the interview asked a question which frames the evidence again, the testimony again, then it's bolstering, it's repetitive or whatever, and, therefore, he can't ask it, that eliminates every question he asked that relates to the evidence that's in.

MS. ROGAN: I understand.

THE COURT: And then if he asks a question about evidence that's not in, then it's hearsay, I suppose.

MS. ROGAN: Right.

THE COURT: In which case, you can't ever get an interview in. That's surely not the law.

MS. ROGAN: Right.

THE COURT: Okay?

MS. ROGAN: I'm confused, though, because I thought on your list you gave me, you said you agreed to that.

MR. PORTER: We changed our minds.

MS. ROGAN: Okay.

MR. PORTER: I'm sorry. Your Honor, I did write agree, but at that time I was not clear on what evidence was in --

THE COURT: All right. At this point --

MR. PORTER: This was done at 11:30 last night when I wasn't sure what the Court was ruling on the hearsay.

THE COURT: 4 through 14. Okay. The state wants that. What's your response, Ms. Rogan?

MS. ROGAN: Well, if the state wants it now, then my response is what I just said before. I object to it because it's bolstering, and Lieutenant Latty doesn't have personal knowledge. But based on the prior rulings and based on the testimony we've heard, I will leave it to the Court.

THE COURT: It's in.

MR. PORTER: And, Your Honor, the final one on my list is Page 104, Lines 4 through 9. And, Your Honor, I believe it probably begins on Line 3 --

MS. ROGAN: Three, 'what.'

MR. PORTER: -- with the last word 'what.'

MS. ROGAN: Uh-huh.

MR. PORTER: Your Honor, I think, in that case, it talks about the victim's state of mind, that she was excited, that type of thing, and that probably should be redacted.

THE COURT: So stipulated.

MS. ROGAN: Up through 'they didn't dream this up.'

MR. PORTER: Up through 'they didn't dream this up' on Line 9.

THE COURT: So stipulated.

MS. ROGAN: Okay.

THE COURT: Any others?

MR. PORTER: That is my list from last night. And the state would suggest that at this time, that is the list. I feel like that --

THE COURT: Just before you hit the play button, I don't believe, is going to be an appropriate time for adding to the list.

MR. PORTER: Yes, sir. I believe that we have stated in the interest of moving this trial on and with -- while we would state our disagreement with some of the Court's points, we have conformed with the Court's rulings, but we think now is the time to cut off objection by the defense. We think now there are technical aspects that take precedence.

THE COURT: You intend to offer this what, sometime tomorrow?

MR. PORTER: Your Honor, I'm going to begin moving tomorrow morning to prepare a transcript and redact the copy of the video that is now in my possession. What we're going to end up with is a full video with blanks in the audio. And I intend to introduce it probably tomorrow afternoon.

THE COURT: Okay. The deletions will be deletions of the audio; is that correct?

MR. DAVIS: No, sir. The deletions include the video.

THE COURT: Okay.

MR. DAVIS: By necessity. They have to include both in order to --

THE COURT: Okay. But I thought I heard -- I thought Mr. Porter just --

MR. PORTER: I thought that was true, Your Honor. I thought that it was just the audio, but it is the --

THE COURT: Okay.

MR. DAVIS: No. There are portions at the end, I guess on tape Number 3, that the audio remains and the video is removed.

MR. PORTER: And that was at the request of the defense.

THE COURT: Okay.

MS. ROGAN: That was the part where he was getting undressed.

THE COURT: All right. Any other objection to the statement, Ms. Rogan?

MS. ROGAN: Well -- no.

THE COURT: Aside from what we discussed.

MS. ROGAN: Besides what we've been arguing about for three months, no.

THE COURT: I mean, we've had a motion hearing, we've had a written motion, we've had a lengthy session on that, we've been through it, and everybody's had an opportunity back and forth with the tape. We went through it last night and tonight --

MS. ROGAN: Right.

THE COURT: -- and I'm inclined to -- if anybody's got anything else to say, now's the time.

MS. ROGAN: I think we've agreed on what we can agree on, and the Court's made rulings on the things we can't agree on, and I think the record's just going to have to be what the record is.

THE COURT: Okay. And everybody's happy? All right.

MS. ROGAN: Well, happy, I wouldn't go so far as to say that.

MR. PORTER: Given the definition of compromise, no one's happy.

MS. ROGAN: I would, however, like to formally make a request that in light of the fact that Lieutenant Latty is going to be essentially testifying that an instruction, a curative instruction, along the lines of Watson v. State be given.

THE COURT: Yeah, let's look at that. Thank you for bringing that up. Now would be a good time, I think, to address that, unless I left it in chambers.

MR. PORTER: Your Honor, I have a copy if the Court --

MS. ROGAN: Yeah, I can give you my copy, too.

THE COURT: I don't recall if it was Watson or what --

MR. PORTER: It was Watson that had the curative instruction.

THE COURT: Yeah. I thought that was very good language. I thought that was --

MS. ROGAN: I did, too.

MR. PORTER: Your Honor, the state has no objection and would suggest that the language be adopted in its entirety.

THE COURT: Okay. Well, I've got a copy of it. I had it marked in the other one. Let me see if I can find it again. That's on Page 826?

MS. ROGAN: That's correct.

MR. PORTER: Yes, sir.

THE COURT: Where the trial court admonished -- what other people had told -- and this will be, what other people had told Officer Latty --

MS. ROGAN: Lieutenant Latty and Investigator Burnette.

THE COURT: -- and Burnette --

MS. ROGAN: Uh-huh.

THE COURT: -- is hearsay and is not admitted into evidence and is not to be accepted by you as true --

MR. PORTER: Except as previously ruled by the Court because you have admitted some hearsay.

MS. ROGAN: But not to the extent that they're saying it.

THE COURT: Well, what I'm saying is, their testimony is hearsay and what they're saying is not evidence. It was evidence when it was admitted by necessity. It's not evidence when Latty says it in the video, so that's what I -- that's my intent.

Let's see how it sounds -- had told Officer Latty and Officer Burnette is hearsay and is not admitted into evidence and is not admitted -- is not to be accepted by you as true as evidence of the truth of what the officers say other people told them. It is admitted only to enable you to comprehend the questions that the officers asked and the responses that the defendant made in response thereto. You bear that carefully in mind. What the defendant said is admissible, what the officers said other people had told them or they believed or they had discovered is hearsay and is inadmissible and cannot be considered by you as evidence of the truth of what other people told them or what they believed or what they had discovered.

And, I guess, if you want to sleep on it and if there's anything to add to make sure that that's not an inference that what hearsay has been admitted by way of the three ladies is not evidence, if you have a suggestion for that, then think about it, and I'll consider incorporating something else along with it.

MR. PORTER: Your Honor, the state would also request, specifically, since there are going to be extensive redactions, that there be an instruction added that there should be no inference drawn from the fact that the tape has been edited --

THE COURT: Yeah.

MR. PORTER: -- or redacted, that that's --

THE COURT: Why don't you or Ms. Rogan or Mr. Moore draw up a suggestion or prepare something, and if you can stipulate to what you want me to tell them, fine. And if not, then I'll do so.

MR. PORTER: Your Honor, and I say that not only from concern of the tape, but I know that the two officers are particularly concerned that no inference be drawn of misconduct on their part. And so I will include specific language that no misconduct by the police be inferred from the fact that the tape has been edited.

THE COURT: Well, why don't y'all think about it and discuss it, and let's -- we'll iron it out if you can't stipulate. Okay. Realistically, when do you think, tomorrow afternoon?

MR. PORTER: Your Honor, if I could have the tape ready by ten o'clock tomorrow morning, I could be playing it by ten o'clock tomorrow morning or eleven o'clock, but I don't expect to have it that early. In the sequence of the case, the tape -- we have one more witness in the financial area and then we move into the defendant's statements. There are a couple of oral statements and then the tape. So literally, if I could technically do it, I could be playing it at 9:30 tomorrow morning, but I don't think I can do that, so I --

THE COURT: But you think sometime tomorrow we'll be hearing the tape?

MR. PORTER: Sometime tomorrow certainly, Your Honor.

THE COURT: And in its present form, you're talking what? Three and a half hours?

MS. ROGAN: It's longer than that, Your Honor, I mean, even with the redactions. It was a five-hour tape to begin with.

THE COURT: I can't remember.

MS. ROGAN: Oh, I've watched it several times.

MR. PORTER: I thought it was about four and a half hours, Your Honor. Just estimating, I thought it was four and a half hours.

MS. ROGAN: It starts at 10:30 and it goes till 3:15 a.m.

MR. PORTER: And the redactions don't -- total redactions probably don't remove thirty minutes out of the whole thing.

MS. ROGAN: Yeah, the -- well, the tape's not any shorter with the redactions because there's just the blank time where the objectionable part came out and then the tape continues on so --

THE COURT: Okay. Well, if that's the case, then we're probably going to need to start it along about the middle of the day or right after lunch or something, if that's the case, unless we split it up. And if that's the case, then we may play part of it tomorrow and part Saturday morning. I don't know if that makes any difference to anybody or not.

MR. PORTER: Your Honor, I can't tell you specifically. I'm trying to work with the Court in both the ending times and --

THE COURT: I understand. Well, it doesn't really matter to me. I'm just pointing out that if everybody, if one or both sides want it all played all together as opposed to being split up like overnight, that I think we're looking at putting that tape on immediately after -- no later than immediately after lunch.

MR. PORTER: Well, Your Honor, I don't have a tremendous problem with splitting it up. It's more important to me to present my case in the order that I want to present it, and I'm going to have to shift that order tomorrow because of the technical aspects of the tape.

THE COURT: Okay.

MR. PORTER: But I have no --

THE COURT: Well, the jurors might prefer to hear it split up for that matter. I mean, five hours, you know, of an interview gets to be kind of long.

MR. PORTER: But, Your Honor, I'm going to -- at this point, I'm going to present the case in the manner that I think is most persuasive to the jury.

THE COURT: Yeah. Well, I mean, I'm not trying to tell you how. I don't care.

MR. PORTER: I understand that, Your Honor. And I understand the time limitations, but I'm --

THE COURT: The other thing is, we've got the jurors -- a few of the jurors that have children, the kids are coming tomorrow. We've got that scheduled, so I don't know -- I'm contemplating running until sometime between five, 5:30, sometime along in there, and recess for the afternoon, which will be about what we've been doing most of the time anyway. It won't be later, it won't be earlier, I expect. And Saturday, I'm contemplating nine to five, so if that's the case, do you still think there's a prospect of resting on Saturday?

MR. PORTER: Your Honor, it's possible. I would suspect that it would be more likely Monday morning --

THE COURT: Okay.

MR. PORTER: -- but it's possible on Saturday.

THE COURT: Okay. Well, whatever it is, it is.

MS. ROGAN: One thing I'd just like to mention, and I'm sure Your Honor will bear this in mind, whenever we watch the tape, I think we're going to need breaks in between.

THE COURT: Oh, for sure.

MS. ROGAN: Okay.

THE COURT: Yeah, I'm not contemplating a five-hour movie --

MS. ROGAN: Because I can't sit for five hours.

THE COURT: -- with everybody and no recesses, no.

MS. ROGAN: Okay.

MR. PORTER: No, sir.

THE COURT: And I would figure everybody -- well, I'll give about every hour, hour and a half, take a recess.

MS. ROGAN: Okay. That's fine. I just wanted to make that request.

MR. PORTER: Your Honor, and I think, clearly, with the transcript, it's going to be much easier to stop at almost any point and begin again.

THE COURT: Sure.

MR. PORTER: It's much less --

THE COURT: Or split it up one day and the next. I don't think that's any --

MS. ROGAN: Or tape to tape. I mean, the tapes are about an hour and a half each.

MR. PORTER: There are three tapes, Your Honor, so we can do that.

THE COURT: Okay.

MS. ROGAN: That might be a good place to break.

THE COURT: Okay. Well, if the state rests either late Saturday or mid-morning Monday, do you have a feel at this point, Mr. Moore, how long the defendant's case in chief is likely to be?

MR. MOORE: Your Honor, we were going over that last night, and it's really hard to estimate how long these witnesses are going to take.

THE COURT: Yeah. Oh, I understand.

MR. MOORE: Some of them Mr. Porter's called that we didn't know if we were going to have to call or not today. Some of them it appears he's not going to call, so I would think a minimum of three days, perhaps --

THE COURT: Okay.

MS. ROGAN: A little more than that.

MR. MOORE: -- perhaps five.

MS. ROGAN: Yeah, more like five.

THE COURT: Okay. All right. So at any rate, it looks like a good, reasonable prospect for everything except rebuttal and surrebuttal by the end of next week, then.

MR. MOORE: I would think so, Your Honor.

THE COURT: Do you think we're likely to have much in the way of rebuttal and surrebuttal? Do you have any kind of feel for that at this point?

MR. PORTER: Your Honor, Mr. Moore keeps promising a big case, so that leads to the potential of more rebuttal, so I don't know.

THE COURT: Okay. Anything else at this point, Mr. Porter?

MR. PORTER: Nothing from the state, Your Honor.

THE COURT: Mr. Moore?

MR. MOORE: Nothing from the defense, Your Honor.

THE COURT: We'll be in recess until nine o'clock tomorrow morning.

[Proceedings were recessed for the evening at 7:35 p.m. on August 24, 1995.]

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